iaBiiiii»iilHWllHWlWHffj/:i!ii:.',^;.i',..'.i.i  ^^ini'Jiiiy:^ 


V 

mmmmtm 


THE 


SCIENTIFIC  SESIES: 


The  IlfTERNATIOJfAL  SCIENTIFIC  SERIES. 
VOL.   X. 


TUE   INTEllNATIONAL  SCIENTIFIC   SERIES. 


THE 


SCIENCE    OF    LAW. 


BY 

SHELDON    AMOS,    M.A., 

BAERISTER-AT-LAW ;   PROFESSOR  OF  JITRtSPRTIDENCE   IN   UNIVERSITY   COLLEGE,    LONDON; 
AND   IN   TUE   INNS  OF  COURTS;    EXAMINER   IN   THE   UNIVERSITY   OF   LONDON. 

AUTHOR   OF 

"A   SYSTEMATIC  VIEW   OP  THE   SCIENCE   OF  JURISPRUDENCE;"    "AN   ENGLISH    CODE, 

ITS  DIFFICULTIES,   AND   THE   MODES   OF   OVERCOMING   THEM,"    ETC. 


NEW   YORK: 
D.     APPLETON     AND     COMPANY, 

549    AND    551    BROADWAY. 

1874. 


PEEFACE. 


As  many  of  tlie  topics  treated  in  the  present  work 
are  the  same  as  those  treated  in  my  former  work, 
"  A  Systematic  View  of  the  Science  of  Juris- 
prudence," it  may  be  serviceable  to  point  out 
distinctly  the  difference  between  the  purposes  I 
have  had  in  view  in  preparing  the  two  several 
works.  This  explanation  will  be  the  *  simplest 
mode  of  distinguishing  their  nature  and  scope. 

The  former  work  was  written  especially  for  Law 
students,  including  under  this  expression  all  who 
for  the  time  are  making  Law  the  principal  part 
of  their  studies,  though  by  no  means  confining  the 
expression  to  those  studying  with  a  strictly  pro- 
fessional object  in  view. 

The  present  work  is  designed  for  the  instruction 
of  all  serious  students,  whether  of  the  Physical 
or  of  the  so-called  Moral  Sciences,  whatever  be, 
for  the  time,  the  prominent  topic  of  their  study, 
and  whatever  be  the  general  or  special  object  they 
have  in  view. 


2040822 


VI  PREFACE. 

The  wider  and  less  technical  scope  of  this 
work,  as  well  as  the  preparatory  acquaintance  with 
scientific  methods  of  thought  I  have  held  myself 
entitled  to  anticipate  in  my  readers,  has  enabled 
me  to  dilate  with  more  minuteness  than  I  could 
elsewhere  on  the  essential  relations  of  Law  to 
Morality,  on  the  one  hand,  and  to  the  general 
constitution  of  Society  and  of  the  State,  on  the 
other. 

The  present  chaotic  and  anarchical  condition  of 
Ethical  Science  in  this  country  places  the  speculator 
on  Law  or  on  Politics  at  the  greatest  disadvantage. 
He  must  step  out  of  his  path  in  order  to  work 
out  for  himself  disputable  theories,  instead  of 
having  an  armoury  of  incontrovertible  maxims 
ready  to  his  hand.  He  can  hardly  turn  to  account 
even  the  commonest  moral  term  without  seeming 
to  be  a  partisan  in  a  war  embittered  with  all  the 
passions  of  political  and  even  religious  fanaticism. 

Not,  however,  that  I  have  shrunk  from  moral 
investigations,  when  the  natural  com-se  of  my 
subject  has  forced  them  upon  me.  1  have  through- 
out insisted  upon,  and  elucidated  in  all  the  ways 
I  could,  the  position  that  a  moral  constitution  of 
society  is,  in  conception  if  not  in  time,  anterior  to, 
and  independent  of,  a  legal  one ;  but  that,  apart 
from    the    strength,    coherence,    and    permanence 


PREFACE.  Vll 


imparted  by  Law  and  Government,  the  most 
hopeful  moral  growths  are  too  frail  and  feeble  to 
endure,  still  less  to  come  to  maturity. 

I  have  lost  no  opportunity  of  enforcing  the 
doctrine  that  human  society  is  built  up  by  the  play 
of  mutual  relations,  and  not  only  (though  it  is  also) 
necessitated  by  the  clash  of  conflicting  interests ; 
that,  philosophically,  no  less  than  historically,  a 
group  of  persons,  and  not  the  individual  person,  is 
the  atomic  unit  of  society  ;  and  that  in  thought, 
and  in  order  of  worth  and  of  preference,  if  not  in 
time,  the  State  exists  before  any  of  its  component 
groups,  and  the  larger  groups  before  the  smaller. 
It  is  the  characteristic  end  of  Law,  as  an  instrument 
of  Government,  to  maintain  the  identity,  the 
coherence,  and  the  vitality  of  all  the  groups  of 
which  the  State  is  composed,  and  to  ascertain  and 
regulate  the  relations  of  the  several  groups  to  one 
another,  and  to  the  State  as  a  corporate  whole. 

In  this  work,  as  in  my  former  one,  I  have 
abstained  as  much  as  possible  from  personal  con- 
troversy. There  may  be  a  time  for  controversy, 
as  there  is  a  time  "  to  every  purpose  under 
the  heaven."  But  in  a  condition  of  society 
like  the  present,  when  a  main  intellectual 
stimulus  is  supplied  by  watching  the  periodical 
tilting-matches  between  authors  among  themselves. 


Vlll  PREFACE. 

and  between  authors  and  critics,  there  is  surely 
a  time  and  place  for  the  clear  and  uninterrupted 
exposition  of  what  is  believed  to  be  truth,  in  all 
its  proportions,  and  with  the  accumulated  treasures 
it  has  acquired  in  the  most  opposite  climates. 

I  have  learnt  too  much  in  all  schools  of  moral, 
legal,  and  political  thought,  to  find  it  a  congenial 
task  to  invite  attention  to  the  errors  or  short- 
comings of  any  of  them.  It  is  hardly  possible  to 
assault  an  isolated  position  of  a  great  writer 
without — even  in  spite  of  oneself,  and  (it  may 
be)  by  an  excess  of  scrupulous  candour — mis- 
representing and  unduly  depreciating  him.  The 
errors  of  writers  who  are  not  great  are  certainly 
not  worth  alluding  to,  however  much  the  extent 
of  their  ephemeral  influence  may  be  lamented. 

There  are  many  indications  that  Law  will* 
shortly  be  recognized  as  an  essential  element  in 
a  complete  general  education.  Among  such  un- 
mistakable indications  are  the  gradual  abolition 
of  some  of  the  most  antiquated  technicalities  of 
English  Law  through  the  operation  of  the  Supreme 
Court  of  Judicature  Act ;  the  increasing  demand 
that  is  being  made  on  all  sides  for  measures  which, 
by  simplifying  the  language  and  structure  of  Law, 
shall  popularize  its  study  ;  the  bolder  conceptions 
that  are  being   entertained   of  tlie   true   range   of 


PREFACE.  IX 

the  higher  education,  and  of  the  claims  of  Politics, 
in  some  other  than  a  party  sense,  to  be  included 
in  that  range;  the  special  efforts  that  are  being 
made  by  the  three  English  Universities,  by  the 
Inns  of  Court,^  and  by  the  Incorporated  Law 
Society  to  widen,  deepen,  and  extend  the  pro- 
fessional training  of  aU  who  are  desirous  of  sharing 
in  it,  whether  they  intend  to  practise  or  not ; 
the  increasing  desire,  suggested  both  by  com- 
mercial interests  and  by  considerations  of  social 
convenience,  to  assimilate,  and  therefore  to  study, 
foreign  systems  of  Law  ;  and,  last  not  least,  the 
attention  that  is  being  awakened  in  the  most 
earnest  and  philanthropic  minds  to  the  claims 
of  International  Law  as  a  means  of  reducinoj  the 
probability,  and  diminishing  the  horrors,  of  War. 

There  are  two  senses  in  which  a  treatise  or  a 
lecture  may  be  said  to  be  'popular.  Either  the 
treatise  or  lecture  may  be  intended  to  serve  as  a 
substitute  for  real  and  serious  study,  by  communi- 
cating the  results  of  study  in  so  clear  and  agreeable 
a  form  as  to  send  the  reader  or  hearer  away  full 
of  a  glowing  and  newly-discovered  sense  of  his 
own  acquirements,  while  it  satiates  his  curiosity 
and  paralyzes  his  industry ;  or  the  treatise  or 
lecture  may  be  intended  to  do  no  more  or  less 
than  to  translate  technical  terms  back  again  into 


X  rilEFACE. 

the  terms  familiar  in  common  speecli ;  to  examine 
afresh  the  meaning  and  scope  of  conceptions  wliich 
the  persistent  jargon  of  specialists  has  cloiicled ; 
to  bring  men  of  various  pursuits  and  tastes  into 
intellectual  contact  with  one  another;  and,  by 
opening  out  to  novices  an  unsuspected  region 
of  interest,  to  whet  their  curiosity  and  to  stimulate 
them  to  further  research. 

It  need  not  be  said  that  it  is  the  aim  of  this 
treatise,  as  I  would  have  it  that  of  all  my  lectures, 
to  be  popular  in  this  latter  sense  and  not  to  be  so 
in  the  former  one. 

Sheldon  Amos. 

9,  Kivfj''s  Bench  Walk, 
Temjjle. 


CONTENTS. 


CHAPTER  I. 

EECEXT   HISTORY    AND    PRESENT   CONDITION   OF   THE  SCIENCE    OF   LAW. 

VACR 

Order  of  Treatment             ...             ...             ...  ,.,             ...             1 

Influence  of  Benthaji         ...              ...             ...  ...             ...             3 

Historical  Position  and  Influence  of  Austin  ...  ...              ...             4 

Sir  H.  S.  Maine's  Work  on  Village  Communities  ...              ...              5 

History  and  Influence  of  English  Common  Law.  ...             ...             7 

Study  of  Roman  Law  in  England                      ...  ...              ...              9 

Influence  of  Modern  Codes                  ...              ...  ...              ...            10 

Influence  of  International  Law,  Public  and  Private  ...             ...           11 


CHAPTER  II. 

PROVINCE    AND    LIMITS    OF    THE    SCIENCE  OF    LAW. 

Suhject-matter  of  Law        ...  ...  ...  ...  ...  13 

Functions  of  the  State  in  the  Creation  of  Law  ...  ...  15 

Nature  of  Constitutional  Law  ...  ...  ...  ...  16 

Matei'ials  of  the  Science  of  Law      ...  ...  ...  ...  18 

Universality  of  Legal  Principles       ...  ...  ...  ...  19 

Conflicting  Theories  of  the  Origin  of  Society  ...  ...  20 

Permanence  of  Legal  Topics  ...  ...  ...  ...  23 

Permanent  Ethical  and  Logical  Elements  in  Law  ...  ...  24 

Law  as  regulating  the  Relations  of  States      ...  ...  ...  25 

Private  International  Law  as  supplying  permanent  topics.  ...  26 


xu 


CONTENTS. 


CHAPTER  III. 


LAW   AND    MOBALITY. 

Opposition  of  the  Regions  of  Law  and  Morality 
Competing  Moral  Theories 

Contrasted  Modes  of  Operation  of  Law  and  Morality 
Equity  as  a  Means  of  Moral  Adjustment 
Distinction  of  Penalty  and  Compensation       ,,, 
Discretionary  Penalties  ...  ... 

Prerogative  of  Pardon 

Moral  Claims  and  Legal  Rights        ... 

Limits  of  the  Operation  of  Law        ... 

Law  and  Personal  Liberty  ...  ... 


CHAPTER  IV. 


THE    GROWTH    OF    LAW. 

Sir  H.  S.  Maine  on  the  History  of  the  Growth  of  Law 
Definition  of  the  term  iaw  ...  ...  ... 

Definition  of  the  term  Siafe 

Functions  of  the  Supreme  Political  Authority  in  the  Creation 

Law 
Sir  H.  S.  Maine  on  the  Origin  and  Nature  of  Customs 
Conversion  of  Customs  into  Laws     ... 
Influence  of  Judicial  Forms 

Contrast  of  the  Functions  of  the  Legislator  and  the  Judge 
Influence  of  Legal  Fictions 
Natm-e  of  English  Equity 
Equity  an  Universally  Recurrent  Phenomenon  ... 


of 


CHAPTER  V. 

THE  GROWTH  OF  LAW — (continued). 

Nature  and  Grounds  of  Interpretation  ...  ...  , 

Modes  of  providing  for  Necessity  of  Interpretation 

Meaning  of  French  term  " /wns^rwcZence  " 

Use  of  Definitions,  Illustrations,  and  Interpretation  Clauses 

"  Extensive,"    "  Restrictive,"   "  Logical,"  and    "  Grammatical 

Interpretation 
Judicial  Adoption  of  Customs 
Incorporation  of  Foreign  Law 
riifluoncu  of  Text-book  Writers  and  Commentators       .,,  , 


CONTENTS.  xiii 

PAOE 

Functions  of  Judges  in  framing  Rules  of  Procedure      ..,             ...  70 

Influence  of  the  expression  "  Law  of  Nature  "               ...             ...  V3 

Subsidiary  Eesources  for  the  help  of  Judges  suggested  by  tho 

Authors  of  the  French  Code                       ...             ...             ...  74 

Criticism  of  the  Projet  of  the  Code  by  the  Montpellier  Tribunal  74 

Modes  of  Statutory  Legislation         ...             ...             ...              ...  75 

Classificatory  Arrangement  of  the  various  Modes  by  which  the 

Growth  of  Law  is  determined                  ...             ,.,            ,„  77 


CHAPTER  YI. 

ELEMENTARY    CONCEPTIONS  AND   TERMS. 

Objects  01  Law  in  respect  of  Persons  and  Things  ...  ...  79 

History  of  the  legal  term  Person  ...  ...  ...  81 

Artificial  or  Fictitious  Persons  •        ...  ...  ...  ...  83 

History  of  the  legal  term  T/iingr       ...  ...  ...  ...  85 

Meaning  of  the  expression  "Incorporeal  Things"  ...  ...  86 

Extensive  Uses  of  the  legal  tei-m  Tiling  ...  ...  ...  87 

Origin  of  conceptions  of  Right  and  Duty  ...  ...  ...  89 

Analysis  of  the  conception  of  "  Liberty "  ...  ...  ...  90 

Relations  of  LibeHy  and  Right           ...  ...  ...  ...  91 

Relations  of  JforaZ  to  iegfaJ  "  Right "  ...  ...  ...  92 

Growth  of  the  conception  of  "  Legal  Right"  ...  ...  93 

Exact  Analysis  of  a  "  Legal  Right"  ...  ...  ...  95 

Crimes  in  relation  to  Rights              ...  ...  ...  ...  96 

De&nitions  oi  terms  Right  and  Duty  ...  ...  ...  97 

Nature  of  Political  Liberty                ...  ...  ...  ...  98 

Possibility  of  the  State  having  Rights  ...  ...  ...  99 

Popular  Uses  of  the  term  Act            ...  ...  ...  ...  100 

Definitions  of  terms  J-ci  and  invent  ...  ...  ,,.  101 

Nature  and  Province  of  Will             ...  ...  ...  ...  102 

Intention  as  qualifying  Acts              ...  ...  ...  ...  103 

Analysis  of  Infeniion.          ...              ...  ...  ...  ...  104 

Modes  of  ascertaining  Intention        ...  ...  ...  ...  105 

Presumptions  in  favour  of  Infancy  ...  ...  ...  106 

Presumptions  in  favour  of  Jjisawiii/  ...  ...  ...  107 

Judicial  and  Medical  Aspects  of  Insantty  ...  ..  ...  108 

Drunkenness  as  affecting  Imputability  ...  ...  ...  109 

Presumptions  in  respect  of  ig?iorance  ...  ...  ..•  110 

Classification  of  Forms  of  Ignorance  ...  ...  ...  Ill 

How  far  Ignorance  is  treated  as  excusable  ...    '  ...  ...  112 

Fraud  as  affecting  Intention               ...  ...  ...  ...  114 

Negligence  as  aflfecting  Intention       ...  ...  ...  •••  115 


XIV  CONTENTS. 


CnAPTER  VII. 

LAW  IX  RELATION  TO  (1)  THE  STATE,  (2)  THE  FAMILY,  (3)  THE  OTHER 
CONSTITUENT  ELEMENTS  OF  THE  STATE. 

PAGB 

Various  Meanings  of  the  term  State              ...             ...  ,.,  118 

Analysis  of  the  conception  implied  in  the  term  State  ...  119 

Historical  Development  of  the  term  State  ...             ...  ...  121 

The  State  in  reference  to  Government           ...              ...  ...  122 

The  Ftmctions  of  the  State              ...              ...             ...  ...  123 

Law  in  relation  to  the  Family       ...             ...             ...  ...  124 

Eeqiiisites  in  a  Law  of  Marriage    ...             ...             ...  ...  125 

Legal  and  Political  Aspects  of  Divorce          ...             ...  ...  125 

Relative  claims  of  Men  and  of  Women        ...              ...  ...  127 

History  of  the  Mutual  Relations  of  Men  and  Women  ...  128 

Legal  Relations  of  Men  and  Women             ...             ...  ...  129 

The  Family  as  a  topic  of  Roman  Law         ...              ...  ...  130 

Growth  of  the  Village  Community                ...              ...  ...  131 

Local  and  Central  Government       ...              ...             ...  ...  132 

Law  in  relation  to  Religious  Bodies               ...              ...  ...  134 

Various  forms  of  the  Relationship  between  Church  and  State  135 

Structure  of  the  "Established  Church  of  England"...  ...  136 

Nature  and  Policy  of  Endowments                 ...             ...  ...  137 

Modes  of  providing  against  Abuses  attending  Endowments     ...  139 

Theory  of  Trusts  and  Trustees         ...              ...              ...  ...  141 

Various  Modes  of  appointing  Trustees            ...             ...  ...  143 

General  View   of    the   Legal   and    Political    Functions  of   the 

State  ...              ...             ...             ...  ...  146 


CHAPTER  VIII. 

LAWS    OF    OWNERSHIP    OR    FROPERTT. 

Early  anticipations  of  Ownership    ...  ...  ...  ..  151 

Progress  of  the  Conception  of  Ownership    ...  ...  ...  153 

Moral  Aspects  of  OuTiership  ...  ...  ...  ...  155 

Communism  ...  ...  ...  ...  ...  ...  159 

Elements  of  a  Law  of  Ownership  ...  ...  ...  ...  160 

Children  and  Lunatics  as  Owners  ...  ...  ...  ...  161 

Early  Property  in  Land     ...  ...  ...  ...  ...  163 

History  of  distinction  between  JJeal  and  Per^uiral  Property    ...  164 

Divisions  of  Things  ...  ...  ...  ...  ••.  165 

Land  as  a  subject  of  Ownership    ...  ...  ...  ...  166 

Ownership  of  "Incorporeal  Things"  ...  ...  ...  16S 


CONTENTS. 


PAEO 


Copyright  ...  ...  ...  ...  ...  ...  16 

Analysis  of  a  Eight  of  Ownership  ...  ...  ...  ...  170 

Description  of  Servitudes  or  Easements       ...  ...  ...  172 

Classification  of  Servitudes  Justinian's  Insfii^eics  ...  ..  173 

Eolation  of  Possession  to  Ownership  ...  ...     ^  ...  175 

Analysis  of  Facts  and  Conceptions  implied  in  rossession  ...  17G 
Distinction    between    the    "  Eight    of    Possession "     and     the 

"Eight  to  Possess"  ...  ...  ...  ...  ...  178 

How    the    notion    of    Ownership    is    evolved    out  of   that   of 

JPossession       ...  ...  ...  ...  ...  ...  179 

Various  and  Inexact  Uses  of  the  term  Owner  ...  ...  ISO 

Development   of    the    Conception    and    Fact     of     Transfer  or 

Conveyance    ...  ...  ...  ...  ...  ...  182 

Sir  H.  S.  Maine's  Theory  of  the  Eoman  Will  ...  ...  183 

Eestrictions  on  Eights  of  Ownership  ...  ...  ...  186 

Political  Limitations  u]Don  Eights  of  Ownership         ...  ...  186 

Modes  of  protecting  Eights  of  Ownership    ...  ...  ...  189 


'  CHAPTEE  IX. 

IiAW    OF     CONTKACT. 

Meaning  and  Purpose  of  Contract ...             ..  ...  ...  190 

Historical  Origin  of  Contract           ...              ...  ...  ...  191 

Essential  Nature  of  Contract           ...             ...  ...  ...  192 

Sir  H.  S.  Maine  on  Primitive  Contracts     ...  ...  ...  193 

Eolation  of  Legal  to  J/oraZ  Contracts             ...  ...  ...  194 

Analysis  of  a  Legal  Contract          ...             ...  ...  ...  195 

Principle  of  Excluding  Immoral  Contracts  ...  ...  ...  196 

The  Capacity  for  Making  a  Contract            ...  ...  ...  198 

The  Form  and  Evidence  of  a  Contract         ...  ...  ...  200 

Meaning  of  the  "Consideration"  for  a  Contract        ..  ...  203 

Eights  and  Duties  of  Contractors  ...              ...  ...  ...  205 

The  Interpretation  of  Contracts      ...             ...  ...  ...  206 

Lien  and  Suretyship           ...             ...             ...  ...  ...  208 

Theory  of  a  Law  of  Banka-uptcy     ...             ...  ...  ...  209 

The  Eemedy  of  "Specific  Performance"      ...  ...  ...  210 

"Vindictive"  or  "Exemplary"  Damages    ...  ...  ...  211 

The  Policy  of  the  English  Combination  Statutes       ...  ...  212 

Modes  of  Assessing  Damages  for  Breaches  of  Contract  ...  214 

Meaning  of  term  Quasi-contracts    ...             ...  •••  •••  215 

Nature  of  Implied  Contracts           ...             ...  •••  •••  216 

Marriage  as  a  Contract     ...             ...             ...  .••  •••  217 

Sale  as  a  Contract              ...             ...             ...  •••  •••  218 


XVI  CONTENTS. 

PAGB 

Eelation  of  a  Contract  to  a  Conveyance  ...  ...  ...  219 

Eelation  of  a  Contract  to  an  Obligation  ...  ...  ...  221 

Transfer  and  Descent  of  Obligations  ...  ...  ...  222 

Nature  of  Negotiable  Instrnments...  ...  ...  ...  223 

Nature  of  Agency  or  Mandate        ...  ...  ...  ...  224 

Natm-e  of  Contracts  of  Assurance.,,  ,„  ...  .,,  225 


CHAPTER  X. 

CRIMINAL  LAW   AND   PROCEDUIIE. 

Primitive  Eelation  of  Crimes  to  Civil  Injuries  ...  ...  229 

Sir  H.  Maine  on  the  Early  History  of  Criminal  Law  ...  230 

Essential  Nature  of  a  Crime  ...  ...  ...  ...  232 

Functions  of  the  State  in  respect  of  the  Prevention  of  Crimes  233 

Theory  of  the  Distinction  between  Crimes  and  Civil  Injuries...  235 

The  Moral  Element  in  Criminality    ...  ...  ...  ...  236 

The  Elements  in  a  Moral  and  in  a  Legal  Judgment       ...  ...  238 

Eelation  of  Criminal  Law  to  Popular  Sentiment  ...  ...  241 

Meaning  of  terms  Dolus  and  21faf  tee  ...  ...  ...  243 

Mr.  Austin's  Analysis  of  the  Elements  of  Criminality...  ...  245 

Theory  and  Grounds  of  Exculpation  ...  ...  ...  246 

Accessories  to  Crimes         ...  ...  ...  ...  ...  350 

Characteristics  of  the  Statute  of  Treasons  of  Edward  IIL  ...  252 

Historical     Account      of     the     English     distinction     between 

" Felonies "  and "  Misdemeanours "         ...  ...  ...  253 

Policy  of  punishing  .4iie?n^is  to  commit  Crimes  ...  ...  254 

Nature  of  the  English  offence  of  " Misprision  of  Treason"         ...  255 

Mr.  E.  S.  Wright  on  the  English  Law  of  Conspiracy  ...  255 

Lord    Mansfield    on  English   Law    as   a  directly    Moralizing 

Instrument    ...  ...  ...  ...  ...  ...  256 

Evils  attending  the  Multiplication  of  Police  Offences  ...  ...  257 

How  far  Eepresentative    Institutions   are    a    Security  against 

Invasions  of  Public  Liberty       ...  ...  ...  ...  258 

Enumei-ation  of  Securities  for  Public  Liberty  ...  ...  261 

Dangers  to  Public  Liberty  incident  to  Subordinate  Legislation ...  262 

Policy  of  Extradition  Treaties  ...  ...  ...  ...  263 

Nature  and  Limits  of    the    Security  implied  in   the  Eight    of 

Bail  ...  ...  ...  ...  ...  ...  264 

Description  and  Operation  of  the  English  Habeas  Corpus  Act     ...  265 

Nature  and  Value  of  the  Institution  of  Trial  by  Jury   ...  ...  267 

Mr.  Fox's  Libel  Act  ...  ...  ...  ...  ...  269 

The  French  Verdict  of  "  Extenuating  Circumstances "  ...  270 


CONTENT&  xvii 


PACK 


English  and  Continental  Criminal  Procedare                 ...              ...  272 

Mr.  Feoude  on  the  Characteristics  of  Englishmen   in    Hexry 

VIII.'s  time  ...             ...             ...             ...             ...              ...  274 

Value  of  the  Confessions  of  an  Accused  Person  as  Evidence        ...  275 

Theory  and  Ends  of  Criminal  Punishments                 ...             ...  278 

Inexpediency  of  the  Use  of  Harsh  and  Cruel  Punishments    ...  282 

Worthlessness  of  Eetaliatory  Punishments  ...             ...             ...  283 

Princiioles  of  Adjusting  Punishments             ...              ...             ...  28i 

Use  and  Value  of  Discretionary  Punishments             ...             ...  286 

Kelevancy  of  Evidence  of  Character             ...              ...              ...  287 

Treatment    of    Lmiatics    and    Youthful     Prisoners    convicted 

of  Crime       ...            ...            ...            ...            ...            ...  288 


CHAPTER  XI. 

THE   LAW    OF   CIVIIi   PEOCEDUEE. 

Proper  Place  of  the  Law  relating  to  Civil  Injuries  ...  ...  290 

Elements  and  Objects  of  the  Law  of  Civil  Procedoi-e  ...  292 

The  Institution  of  a  Legal  Profession           ...             ...  ...  294 

General  course  of  a  Civil  Trial      ...             ...             ...  ...  295 

Nature  and  History  of  "  Pleading  "               ...             ...  ...  296 

Parallel  presented  by  Roman  and  English-  Pleading...  ...  297 

Rules  of  Evidence              ...             ...              ...              ...  ...  299 

Value  of  Presumptions  in  settling  on  whom  lies  the  Burden  of 

Proof             ...             ...              ...             ...             ...  ...  300 

Policy  of  excluding  and  of  restricting  Evidence         ...  ...  302 

Possibility  of  determining  what  are  "Relevant  Facts"  ...  303 
Meaning  of   the   opposition  between  Direct    and  Circumstantial 

Evidence       ...             ...              ...             ...         .     ...  ...  304 

Meaning     o'f    Hearsay    Evidence,     and    the   policy  of  exclud- 

ing  it              ...              ...             ...             ...             ...  ...  305 

Evidence  obtained  out  of  Coni"t        ...              ...              ...  ...  305 

Use  of  Depositions  and  Answers  to  "  Interrogatories"  ...  306 

Use  and  Value  of  Cross-examination                ...             ...  ...  307 

Policy  of  exacting  Judicial  Oaths    ...             ...  ...  308 

Use  and  Treatment  of  the  Evidence  of  Experts            ...  ...  309 

Nature,  Value,  and  Morality  of  Advocacy      ...             ...  ...  311 

Distribution    of  Courts    into    Courts    of  Original    Jurisdiction 

and  Courts  of  Appeal                ...             ...             ...  ■•.  313 

Distribution  of  Courts  into  Courts  of   Inferior   and   Courts  of 

Superior  Jurisdiction  ...              ...             ...              ...  ...  314 


XVlll  CONTENTS. 

PAGE 

Distribntion    of    Courts    according     to     the    nature     of  their 

business         ...              ...             ...             ...             ...  ...  315 

Valfie  of  Tribunals  of  Commerce     ...             ...             ...  ...  316 

Theory  of  Costs    ...             ...             ...             ...             ...  ...  317 

Conflict  of  Laws,  or  Private  International  Law            ,„  ,.,  318 


CHAPTER  XII. 

INTERNATIONAL   LAW. 

Use  of  term  Law  In  the  International  sense  ...  ...  ...  322 

Mr.  Austin  on  International  Law     ...              ...  ...  ...  323 

Law  and  Morality  in  the  International  sense .. .  ...  ...  323 

Criticism  of  recent  English  use  of  the  term  Law  ...  ...  324 

Analogy  presented  by  Early  Law      ...             ...  ...  ...  325 

International  and  Customary  Law   ...              ...  ...  ...  326 

Evolution  of  a  Supreme  Political  Authority  ...  ...  ...  327 

Contrast  of  International  and  National  Law...  ...  ...  328 

Analogy  of  the  State  and  a  Human  Being      ...  ...  ...  329 

The  State  a  Composite  Body              ...             ...  ...  ...  330 

Analogy  of  a  State  and  a  Corporation             ...  ...  ...  331 

History  of  International  Law            ...             ...  ...  •••  332 

Value  of  a  pre-existing  Legal  Ideal...             ...  ...  ...  333 

Value  of  a  pre-existing  Moral  Ideal...            ...  ...  ...  334 

Influence  of  Chivalry         ...             ...             ...  ...  ...  335 

Feudalism,  the  Church,  and  Monarchy            ...  ...  ...  336 

Eolations  of  European  Sovereigns    ...             ...  ...  ...  337 

The  Method  of  Grotius     ...             ...             ...  ...  ...  338 

Functions  of  the  Statesman  and  of  the  Text-book  Writer  ...  339 

Eecent  Growth  of  International  Law              ...  ...  ...  310 

Vattel's     Distinction     between     the    "Necessary"     and    the 

•' Voluntaiy "  Law  of  Nations    ...             ...  ...  ...  341 

Eecent  Multiplication  of  Topics        ...              ...  ...  ...  342 

Professor  Blxjntschl  and  Mr.  Dudley  Field's  Codes  ...  343 

Modern  Views  of  Expediency  and  Justice       ...  ...  ...  344 

Influence  of  International  Law  on  Wars          ...  ...  ...  345 

Theoretical  Equality  of  States          ...             ...  ...  ...  346 

Prevalent  Indisposition  to  Peace      ...             ...  ...  ...  347 

Indisposition  to  Arbitration                 ...              ...  ...  •••  348 

Eeal  Obstacles  to  Arbitration           ...              ...  ...  ...  319 

Limits  of  use  of  Arbitration               ...              ...  ...  ...  350 

Modes  of  preventing  Wars  ...  ...  351 

Value  of  Schemes  for  Codification    ...             ...  ...  ...  352 

Special  Difficulties  in  the  way  of  Codification  ...  ...  353 


CONTENTS.  xix 


PAGE 


Actnal  force  of  International  Law    ...  ...  ,.,  ,..         355 

Prospects  of  International  Law         ...  ...*  ...  ...         356 

Organization  of  Professors  ...  ...  ,..  ,,.  ...        357 


CHAPTER  XIII; 

CODIFICATION. 

Spontaneous  Growth  of  Early  Law  ...             ...            .„  „,  360 

Mr.  J.  S.  Mill  on  English  Law  in  the  time  of  Bentham  ,.,  362 

Enumeration  of  Reasons  for  Codification         ...             ...  ...  364 

Sir  H.  S.  Maink  on  Ancient  Codes  ...             ...             ...  ...  365 

Various  Uses  of  the  terms  Code  and  Codification           ...  ...  366 

Meaning  of  the  term  Digest,  as  opposed  to  Code.           ...  ...  367 

Objections  to  a  Digest        ...             ...             ...              ...  ...  368 

Advocates  of  "  Progressive "  Codification      ...             ...  ...  369 

Analogy      of     British.Indian     Codes     and     of     the     Code     of 

Frederick   II.             ...             ...             ...             ...  ...  370 

Objections  to  Partial  Codification     ...             ...             ...  .[.  371 

A  Code  as  a  Product  of  Logical  Art...              ...             ...  ...  372 

Analogy  from  the  Structure  of  Modem  Encjlish  Statutes  ...  373 

Purpose  of  Definitions         ..,             ...              ...             ...  ...  374 

Demand  for  Rigid  Classification        ...             ...             ...  ...  375 

Adaptation  of  Language  to  Law       ...             ...              ...  ...  376 

Amendments  of  the  Code,  and  Use  of  Definitions  and  Illustrative 

Cases             ...             ...             ...             ...             ...  ...  377 

Fresh  Legislation  embodied  in  a  Code...         ...              ...  ...  378 

Heedless  Use  of  Foreign  Analogies  .. .              ...              ...  ...  379 

Contrast  presented  by  English  and  Continental  Law    ...  ...  380 

Bentham's  testimony  to  excellence  of  English  Law      ...  ...  381 

Characteristics  and  History  of  English  Law   ...             ...  ...  382 

Characteristics  and  History  of  Fretich  Law    ...           -  ...  ...  383 

Roman  Law  as  an  Ingredient  of  French  Law                 ...  ...  384 

Savigny's  objections  to  Codification  in  GerMi?ny          ...  ...  385 

Political  Objections  to  Codification  ...              ...             ...  ...  386 

How  far  Statute    Law    expresses    the    sentiments  of  the  Com. 

mmiity            ...              ...              ...              ...              ...  ...  388 

Disadvantages  of  Unwritten  and  of  Customary  Law    ...  ...  389 

Illustrations  from  English  Common  Law  and  from  Customary 

Systems  of  France       ...              ...              ...             ...  ...  390 

Relations  of  Customary  Law  to  a  Code            ...             ...  ...  391 

Relations  of  New  Statutes  to  a  Code                ...             ...  ...  392 

Principles  for  determining  whether  the  time  for  Codification  has 

arrived           ...             ...             ...             ...               ..  ...  393 


XX 


CONTENTS. 


CHAPTER  XIV. 


LAW    AND    GOVERNMENT. 

Democratical  Form  of  Modern  Governments  . . . 

Distinction  between  Administration  and  Legislation 

The  Use  of  Subordinate  Legislation  ... 

Perils  incident  to  the  Secrecy  of  Local  Legislation 

Value  of  Popular  Co-operation 

Functions  of  the  Statesman  in  respect  of  Legislation 

Moral  Influence  exercised  by  Laws  ... 

Fallaciousness    of     the     notion    of    making     experiments 

Legislation   ... 
Law  as  a  fact  by  which  the  State  is  organized  and  Individual 

Character  perfected    ...  ...  ,,,  ,.. 


PACE 

396 

397 

•  ••              .. 

399 

•  ••              •• 

400 

•••              ■• 

401 

•  •«             •• 

403 

404, 

405 


40G 


^3" 


SCHEME    OF    A    BOPT    OF    LAWS    FOIi   A    MODERX    STATE. 

PreUminary  ifatter. 


Laws  Admissible  into  a  Code. 


Laws  not  Admissible  into  a  Code. 


THE   SCIENCE  OF  LAW. 


CHAPTER   I. 


RECENT  HISTORY  AND  PRESENT  CONDITION  OF  THE 
SCIENCE  OP  LAW. 

In  entering  upon  the  treatment  of  any  science  it  must 
always  be  a  matter  of  doubt  whether  precedence,  in  the 
order  of  treatment,  should  be  accorded  to  its  history  or  to 
its  nature  and  limits.  It  is  obvious  that  both  topics  are 
essential  to  a  complete  elucidation  of  the  science.  The 
terms  which  a  description  of  the  science  involves  cannot 
be  apprehended  in  all  their  integrity  and  distinctness,  if 
no  allusion  is  made  to  the  progressive  efforts  by  which 
they  were,  step  by  step,  rescued  by  a  line  of  thinkers 
from  all  the  complications  of  popular  language.  Nor,  of 
course,  on  the  other  hand,  can  this  historical  review  be 
understood  apart  from  all  scrutiny  into  the  nature  of  the 
materials  and  conceptions  which  the  terms  have  more 
and  more  exactly  represented, 

.The  solution  of  the  difficulty  is  to  be  found  in  start- 
ing boldly  with  one  class  of  topics  before  the  other,  and 
in  interpolating,  by  way  of  anticipation,  such  occasional 
explanations  as  may  be  necessary  to  give  intelligibility  to 


Z  iHl;;  SCIENCE   OF   LAW. 

the  whole.  In  this  way  each  fresh  chapter  throws  light 
upon  all  its  predecessors,  and  the  first  chapter  is  never 
completely  mastered  till  after  the  study  of  the  last.  In 
the  present  case  it  will  be  found  most  conducive  to  the 
purpose  of  precisely  formulating  the  Science  of  Law  to 
state  briefly  the  condition  in  which  that  science  stands  in 
the  present  day,  and  to  indicate  the  steps  by  which  that 
condition  has  been  reached. 

There  have  been  two  main  obstacles  which,  in  this 
and  in  other  countries,  have,  in  different  degrees,  ob- 
structed and  perplexed  the  progTess  of  scientific  methods 
of  thought  in  the  matter  of  law.  The  one  is  the  implica- 
tion of  law  with  morality  ;  the  other  is  the  implication 
of  abstract  law  with  the  individual  character  of  each 
particular  State  as  exhibited  in  its  national  customs.  As 
to  the  first  of  these  obstacles,  the  full  nature  of  the 
difficulty  can  only  be  understood  when,  in  a  later  chapter, 
the  true  and  delicate  relations  of  law  and  morality  come 
under  exact  investigation.  But,  in  the  mean  time,  it  is 
obvious  that  when  the  majority  of  persons  use  the  terms 
"right,"  "ought,"  "duty,"  "crime,"  "malice,"  "fraud," 
they  pay  little  attention  to  the  construction  which  is  put 
upon  those  important  words  in  a  Court  of  Justice.  Still 
less  are  they  thinking  of  the  great  logical  exactitude  in 
the  use  of  every  one  of  those  terms  which  the  practice 
of  a  Court  of  Justice  demands.  They  use  the  words 
generally  in  a  moral,  rather  than  in  a  legal  sense,  or,  at 
the  best,  in  a  legal  sense  more  or  less  strongly  tinctured 
with  a  moral  sense. 

It  cannot  be  denied  that  the  best  and  most  philo- 
sophical thinkers  of  Germany,  cognizant  as  they  are  of 
the  true  relations  of  law  and  morality,  and  of  legal  and 
moral  terms,  have  to  a  certain  extent  contributed  to  this 
popular  confusion  by  their  reluctance  to  abstract,  even 
provisionally,  law  from  its  moral  surroundings.      This 


INFLUENCE   OF   BENTHAil.  3 

abstraction  has  nowhere  been  so  completely  achieved  as 
by  Englishmen,  after  a  fashion  which  will  be  shortly 
explained.  The  result  of  this  philosophic  tendency  in 
Germany  has  been  to  merge  the  scientific  treatment  of 
law  in  the  larger  region  of  general  ethical  inquiry ;  and, 
consequently,  instead  of  the  Science  of  Law  making  an 
even  and  independent  progress  of  its  own,  it  has  un- 
dulated with  every  wave  of  ethical  speculation,  and  has 
consequently  suffered  the  retardation  incident  to  the 
growth  of  the  most  involved,  because  the  most  composite, 
branch  of  intellectual  research. 

The  same  dangers  threatened  the  growth  of  a  Science 
of  Law  in  the  hands  of  Bentham  in  this  country, 
though  they  were  obviated  by  the  very  causes  which 
gave  them  birth.  Bentham's  characteristic  method  was 
to  approach  all  moral  and  all  legal  rules  in  exactly 
the  same  attitude,  and  to  test  their  value  by  one  identical 
method — that  of  their  conducing  (as  he  expressed  it) 
to  the  greatest  happiness  of  the  greatest  number.  The 
fact  that  a  legal  rule  proceeded  from  a  political  sove- 
reign, and  that  its  infringement  was  punishable  by  that 
authority  in  a  definitely  prescribed  way,  while  a 
moral  rule  proceeded  (as  Bentham  held)  from  an  inde- 
terminate number  of  persons,  and  its  infringement 
was  only  punishable  at  the  hands  of  some  of  the  num- 
ber, with  every  feature  of  indefiniteness,  indicates  only 
differences  in  degree,  and  not  in  kind.  Moral  rules  might 
gradually  become  as  efficient  as,  or  more  efficient  than, 
legal  rules  ;  and  legal  rules  might,  through  non-execution 
or  other  causes,  partake  of  all  the  imperfections  of  moral 
rules.  There  was  no  other  morality  but  such  as  embodied 
moral  rules  of  this  class,  and  it  differed  from  law  only 
in  the  character  of  the  imposing  authority,  and  in  the 
cogency  of  the  "sanction"  or  "penalty."  The  direct 
effect  of  this  mode  of  reasoning  was  to  lose  sight  alto- 


4  THE  SCIENCE  OF  LAW. 

gether  oi*  any  permanent  distinction  and  relation  between 
law  and  morality,  and  thus  to  merge  the  Science  of  Law 
into  the  Science  of  General  Ethics,  as  was  being  done 
from  a  directly  opposite  point  of  view  by  the  great 
philosophers  of  Gennany.  But  the  indirect  effect  was 
very  different.  It  was  the  annihilation  of  morality  as  a 
region  permanently  independent  of  law. 

The  next  stage  of  thought  evidently  was  the  deliver- 
ance of  law  from  the  dead  body  of  morality  that  still 
7  clung  to  it,  and  this  was  effected  by  Mr.  Austin,  who 
("f  may  be  said  to  have  been  the  true  founder  of  the  Science 
of  Law,  if  indeed  such  an  honour  can  ever  belong  to  any 
one  man,  who  can  at  the  best  be  no  more  than  the 
spokesman  of  his  generation,  and  if  he  think  at  all,  must 
needs  take  the  next  and  only  available  step  before  him 
at  the  time. 

It  is  true,  however,  that  Mr.  Austin  combined  in  a 
peculiar  degTee  the  exact  qualifications  needed  for  the 
'  work  before  him.  He  thoroughly  understood  Bentham's 
work,  and  profoundl}-  -ympathized  with  it ;  but  he  also 
sympathized  with  much  that  to  Bentham  was  intolerable. 
And  yet  he  failed  to  sympathize  with  that  element  in 
foreign  thought  which  would  have  led  him  astray  from 
his  appropriate  task,  and  have  deluged  law  with  ethics 
and  metaphysics.  Mr.  Austin  apprehended  to  the  full  the 
use  of  the  utilitarian  test  as  applied  to  the  political  value 
of  laws,  and  he  recognized  that  the  proper  use  of  this  test 
is  an  essential  ingredient  in  the  ethical  judgment  of  the 
value  of  human  actions.  But  he  tried  to  discriminate 
with  laborious  and  almost  painful  inxiety  between  the 
region  of  law  and  that  of  morality,  claiming  for  the  region 
of  law  a  scientific  character  wholly  peculiar  and  distinct. 
His  sympathy  with  the  writings  of  the  Roman  lawyers, 
in  which  he  diverged  notably  from  his  master,  led  Mm 
at  once  to  a  comparative  study  of  English  and  Roman 


MR.   AUSTIN    AND   SIR   H.   MAINE.  5 

law;  and  this  again  evolved  the  ideas  which,  being 
permanent  and  universal,  give  body  and  substance  to  the 
Science  of  Law.  Had  Mr.  Austin  not  leaned  more  to  a 
mechanical  system  of  ethics  than  to  a  transcendental 
one,  he  must  have  incorporated  more  of  German  thought 
in  his  work  than  he  did.  But,  fortunately  for  the  pro- 
gress of  science  then,  he  was  just  broad  enough  to  fiee 
himself  from  Bentham,  and  just  narrow  enough  to  save 
himself  from  Kant  and  Hegel. 

It  was  said  that  the  other  obstacle  to  the  progress 
of  the  Science  of  Law  has  been  found  in  the  implication 
of  law  with  the  individual  character  of  each  particular 
State  as  exhibited  in  its  national  customs.  There  are  two 
main  modes  in  which  law  comes  into  being,  one  of  which 
may  be  described  as  by  ascending  upwards,  and  the  other 
as  by  descending  downwards.  The  kind  of  law  which 
ascends  is  fonned  out  of  customs  spontaneously  observed 
by  classes  of  the  population,  either  in  certain  places,  or 
living  under  certain  special  conditions,  or  practising  cer- 
tain sorts  of  trades,  professions,  or  occupations.  The  true 
relations  of  these  customs  to  the  law  formed  out  of  them 
will  be  exhibited  further  on,  and  the  philosophy  of  the 
whole  subject  has  been  treated  by  Sir  H.  Maine  in  a  most 
interesting  way,  in  his  lectures  on  "  Village  Communi- 
ties." The  other  sort  of  law  is  that  consciously  imposed 
l)y  the  supreme  political  authority,  or  by  the  persons  to 
whom  a  subordinate  authority  is  delegated  for  this 
pui-pose. 

All  the  law  that  comes  into  being  through  the  mere 
practice  of  courts  of  justice  belongs  either  to  one  or 
the  other  of  these  kinds,  as  qualified  by  the  idiosyncracy 
of  particular  judges.  The  relation,  however,  of  each  of 
these  kinds  of  law  to  the  other  depends  generally  more 
upon  the  discretion  of  judges  than  upon  any  fixed 
principle.      Thus  it  may  be  laid  down  as  an  universal 


6  THE   SCIENCE   OF   LAW. 

phenomenon  that,  while  one  large  mass  of  every  system 
of  national  law  comes  direct  from  the  people,  another 
large  mass,  constantly  altering,  controlling,  supplement- 
ing, and  superseding  the  former,  comes  directly  from 
the  Government.  It  need  not  here  be  said  that  both 
masses  of  law  draw  all  their  political  force  and  validity 
from  nothing  else  than  the  acquiescence  and  strength  of 
the  Government,  however  they  may  differ  in  their  origin. 

It  is  obvious,  then,  that  that  mass  of  the  law  which 
is  most  coloured  by  the  medium  of  the  popular  usages 
amidst  which  it  arose  is  most  likely  to  be  peculiar 
and  estranged  from  the  like  mass  of  law  in  other 
countries  ;  and  in  a  country  where  that  mass  of  the  law 
is  the  most  abundant  and  conspicuous,  the  alienation 
from  all  foreign  systems  of  law  is  likely  to  seem  most 
complete.  Now,  it  is  this  state  of  things  which  exactly 
represents  the  condition  of  the  legal  system  of  England 
before  the  time  of  Bentham,  of  that  of  France  before  the 
Revolution,  and  of  that  of  Germany,  to  a  great  extent, 
even  at  the  present  day.  The  case  of  England  will 
illustrate  that  of  the  other  countries,  and  will  discover 
at  once  why  it  is  that  a  Science  of  Law  is  only  of 
extremely  modern  growth. 

It  is  well  known  that  up  to  the  time  of  Bentham  the 
law  of  England,  and  more  especially  the  most  antiquated 
portions  of  it,  or  the  "  Common  Law,"  was  obsequiously 
venerated  on  all  sides,  by  judges,  practising  lawyers, 
legislators,  and  the  general  public,  as  the  "  perfection 
of  human  reason."  If  such  a  view  seemed  to  shock 
common  sense,  when  brought  into  glaring  contrast  with 
the  actual  anomalies,  contradictions,  barbarities,  and 
irrational  formalities  which  characterized  every  portion 
of  the  English  Common  Law,  the  difficulty  was  got 
over  by  ascribing  all  that  was  reasonable  and  precise  to 
the  Law,  and  all  that  was  necessarily  repugnant  even 


ENGLISH   "  COMMON   LAW.  7 

to  the  acclimatized  temperament  of  legal  practitioners, 
to  false  interpretations  of  it.  It  is  true,  indeed,  that 
the  main  structure  of  the  English  Common  Law  was  so 
closely  built  into  the  very  fabric  of  the  English  constitu- 
tion, and  even  of  English  social  and  family  life,  especially 
in  the  department  of  the  land  law,  the  criminal  law, 
and  the  county,  municipal,  and  parochial  institutions 
of  the  country,  that  it  might  well  be  conceived  that 
nothing  short  of  a  national  cataclysm  could  suffice  to 
effect  a  thorough  reform  of  the  law  without  endangering 
the  very  basis  upon  which  the  whole  State  rested. 

Just  before  the  time  of  Bentham,  English  law  had 
been,  and  still  was,  undergoing  two  great  and  important 
spontaneous  modifications ;  one  through  the  great  de- 
velopment of  commercial  law,  by  which,  as  it  were,  a  new 
and  noble  wiiig,  built  after  the  most  approved  models, 
was  added  on  in  a  few  years  to  the  ancient  edifice ;  and 
the  other  through  the  rapid  expansion  of  the  jurisdic- 
tion of  the  Court  of  Chancery.  It  remained  for  Bentham 
to  use  the  battering-ram  of  the  pure  reason  against 
what  remained  of  the  ancient  system,  and  to  compel 
every  portion  of  it  to  justify  itself  by  something  better 
than  its  antiquity,  its  uncertainty,  or  its  serviceableness 
to  the  lower  interests  of  an  inert  legal  profession.  This 
proclivity  of  Bentham's  necessarily  involved  a  recognition 
of  the  principle  that  certain  immutable  logical  and 
ethical  principles  underlie  the  laws  of  every  country,  and 
that  the  iniquitous  condition  of  large — and  those  the 
most  favourite — portions  of  English  law  proceeded  from 
fbrgetfulness  of  these  principles. 

The  first  step  towards  the  enucleation  of  a  true 
Science  of  Law  was  thus  indirectly  facilitated  by  what 
had  hitherto  been  one  of  the  most  serious  hindrances  to 
the  conception  of  such  a  science.  The  hindrance  was  the 
implication  of  the  national  law  with  the  formal  institu- 


//' 


8  THE   SCIENCE   OF    LAW. 

tions  of  the  English  people.  It  is  obvious  that  in  every 
country  such  an  implication  must  exist,  especially  in  the 
oldest  portions  of  the  law ;  but  in  a  country  which,  like 
England,  has,  for  so  many  hundreds  of  years,  suffered  no 
foreign  conquest,  and  has  generally  guarded  its  insular 
ways  and  usages  with  almost  sanctimonious  reverence, 
the  obstacles  to  a  release  of  law  from  its  surrounding- 
incidents  must  be  intensely  powerful. 

The  feeble  hold  that  the  civil  and  canon  law  have 
had  upon  English  Courts,  and  the  jealous  opposition  to 
the  introduction,  in  ever  so  diluted  a  form,  into  the 
Common  Law  Courts  especially,  of  principles  borrowed 
from  them,  present  another  striking  point  of  contrast 
between  the  juridical  situation  of  England  and  that  of 
continental  countries.  It  may  well  be,  however,  that  the 
very  enormity  of  the  circumstances  by  which  English 
law  exhibited  an  aspect  so  markedly  stagnant  and 
barbaric,  in  comparison  with  its  progressive  political  con- 
stitution so  much  in  advance  of  every  country  of  Europe, 
tended  to  precipitate  the  change.  So  soon  as  light  was 
once  let  in  upon  the  dark  place,  it  poured  in  like  a  flood. 
The  exact  measure  of  Bentham's  work  in  constructing 
the  Science  of  Law  is  difficult  to  evaluate,  as  he  com- 
bined in  himself  so  many  distinct  faculties;  generally 
attempting  to  reform  the  political  substance  at  the  same 
time  that  he  laid  bare  the  incongruities  of  the  logical  form 
of  law.  Nevertheless,  in  reforming,  or  endeavouring  to 
reform,  legal  terminology  and  classification  on  principles 
of  general  logic,  he  was  the  necessary  forerunner  of  Mr. 
Austin,  to  whom,  as  has  been  said,  the  conscious  estab- 
lishment of  the  legal  science  must  properly  be  attributed. 
Indeed,  it  is  scarcely  possible  to  see  how  the  science 
could  have  come  into  being  at  the  time  it  did,  without 
the  previous  existence  of  a  body  of  truculent  criticism 
directed    against     the   abuses    and    scholastic    puerili- 


STUDY   OF   ROMAN   LAW.  9 

ties  which  disfigured  so  large  a  portion  of  English 
law. 

The  revival  of  the  study  of  Roman  law  in  this 
country  must  not  be  omitted  in  recounting  the  main 
antecedents  out  of  which  the  Science  of  Law  has  been 
evolved.  This  study,  commended  as  it  was  in  some 
memorable  language  of  Mr.  Austin's,  has  derived  an 
important  impetus  from  the  scholarly  and  historical 
genius  of  Sir  H.  Maine. 

There  are  two  distinct  directions  in  which  the  study 
of  Roman  law  has  already  influenced  legal  thought,  and 
is  likely  to  influence  it  in  the  future.  One  of  these 
is  the  improvement  of  purely  logical  conceptions  through 
the  comparison  of  the  methods,  terminology,  and  ar- 
rangement of  the  corpus  juris  with  the  traditional 
principles  of  English  law.  The  mere  habit  of  laying 
side  by  side  two  systems  historically  and  ethically  so 
remote  from  one  another  could  not  fail  to  discover 
elements  of  unity  in  them  which,  in  fact,  are  the  rudi- 
mentary principles  of  a  Science  of  Law, 

The  other  direction  which  the  study  of  Roman  law 
has  taken  has  been  of  a  more  strictly  historical  kind. 
Thi'ough  the  pursuit  of  Roman  law  in  an  historical  or 
antiquarian  spirit,  the  relations  of  the  national  system  of 
law  to  all  the  other  phenomena  of  civilization  in  a  country, 
and  especially  to  the  earliest  phases  of  that  civilization, 
have  had  much  light  thrown  upon  them.  This  light  has 
been  intensified  through  the  recent  study,  in  a  spirit 
of  comparative  science,  of  the  early  customs  of  primitive 
communities  all  over  tlie  world.  It  may  be  that  at 
present  this  process  has  been  rather  too  hastily  per- 
formed, and  the  generalizations  arrived  at  may  hereafter 
prove  to  have  been  premature  and  superficial.  But 
the  hopeful  spirit  in  which  any  track  of  early  modes 
of  property,  inheritance,  testamentary  disposition,  sue- 


10  THE   SCIENCE   OF   LAW. 

cession,  marriage,  and  criminal  or  civil  procedure,  is 
invariably  followed  out  by  modem  investigators,  points 
to  the  presence  of  a  more  and  more  conscious  belief 
in  the  existence  of  a  Science  of  Law.  Undoubtedly 
the  study  of  Roman  law,  as  critically  pursued  of  late 
years,  must  be  credited  witb  these  favourable  results  and 
prospects. 

On  the  other  hand,  it  may  be  necessary  in  this  place 
to  interpose  a  caution,  in  order  to  guard  against  an  over 
vehement  tendency  to  exaggerate,  by  way  of  reaction, 
the  importance  of  Roman  law.  If  this  study  is  to  form 
an  essential  element  in  the  legal  education  of  every  prac- 
tising lawj^er,  it  will  be  well  that  the  method  of 
teaching  adopted  should  disclose  of  itself  that  the 
study  is  pursued,  not  for  the  pui-pose  of  gTatifying 
antiquarian  curiosity  or  even  literary  taste,  but  solely 
in  subservience  to  the  paramount  object  of  promoting 
the  scientific  study  of  modern  systems  of  law.  If 
Roman  law  be  thus  studied  in  a  strictly  scientific  spirit, 
with  a  view  to  the  mastery  of  its  form  and  methods, 
and  not  to  the  servile  imitation  of  its  precedents,  the 
result  can  only  be  good.  Foreign  law  and  International 
law  can  be  studied  through  no  other  medium  than 
through  Roman  law,  and  no  exposition  of  the  Science 
of  Law  can  be  satisfactory  which  is  not  of  cosmopolitan 
application. 

The  construction  of  modem  codes,  especially  those 
already  attempted  for  English-speaking  or  English- 
governed  populations,  must  at  once  give  the  gi^eatest 
impulse  to  the  scientific  study  of  law,  and  render  that 
study  a  more  and  more  indispensable  condition.  The 
histoiy  of  Anglo-Indian  legislation  in  this  respect  is 
very  peculiar.  The  laws  of  British  India  have  been 
recently  re-modeUed  and  re-published  under  the  direction 
of  a  line  of  accomplished   lawyers   from   this   country. 


MODERxV   CODES   AND   INTERNATIONAL   LAW.  11 

Much  of  the  law  subjected  to  the  process  of  recon- 
struction is  identical  ^vith  the  law  of  England.  A  reflex 
influence  has  been  experienced  by  the  mother  country 
upon  itself,  and  the  question  is  naturally  asked  whether 
the  alleged  impossibility  or  excessive  difficulty  of  at 
once  codifying  English  law  is  not  rather  due  to  the 
indolence  of  politicians,  if  not  to  the  obstruction  of 
interested  persons,  than  to  any  real  incompatibility 
between  the  English,  when  in  their  own  country,  and 
a  well-arranged  and  intelligible  system  of  law. 

It  is  obvious  that  the  increasing  intercourse  of  modern 
States  must  in  a  variety  of  w^ays  hasten  the  study  of  the 
Science  of  Law.  The  recent  progress  of  International 
law,  both  public  and  private,  is  at  once  an  augury  and 
an  expression  of  this  tendency.  If  States  are  to  have 
relations  of  ever-increasing  intimacy  with  each  other, 
there  must  be  some  uniform  code,  waitten  or  unwritten, 
by  which  the  rights  and  duties  of  States  are  defined 
and  circumscribed.  Beneficial  and  essential  as  is  such 
a  code  in  times  of  war,  it  is  equally  so  in  times  of  peace. 
The  construction  of  such  a  code  must  proceed  upon 
some  settled  and  generally  recognized  principles  of 
logical  classification,  terminology,  and  ethical  concep- 
tions. The  materials  for  these  principles  must,  and 
can  only,  be  drawn  from  a  comparative  study  of  the 
systems  of  national  law  actually  prevalent  in  the 
different  countries. 

Hitherto  the  accidental  prominence  of  Roman  law  in 
International  law  has  hid  from  sight  the  essentially  com- 
parative character  of  any  universal  system  of  law.  But 
as  International  law  progresses  to  still  finer  develop- 
ments, and  trenches  on  regions  of  commerce  and  mutual 
co-operation  wholly  unknown  both  to  the  23rinciples  and 
to  the  language  of  the  Roman  law,  some  novel  method 
must  be  discovered  of  expressing  a  common  assent  based 


12  THE   SCIENCE   OF   LAW. 

upon  common  needs  and  aspirations.  Such  a  method 
will  evidently  be  a  comparative  one,  and  the  elabo- 
ration of  such  a  method  presupposes  the  complete 
development  of  a  Science  of  La.w.  In  that  region 
which  is  sometimes  called  Private  International  Law, 
and  sometimes  the  Conflict  of  Laws,  due  as  it  is  to 
the  intercourse  with  each  other  of  the  citizens  of  dif- 
ferent States,  whether  brought  about  through  travel, 
commerce,  continued  residence,  or  even  colonization, 
there  has  been  increasingly  felt  the  same  pressing  need 
to  discover  principles  of  utility  and  of  justice  to  which 
the  citizens  of  a  variety  of  States  and  the  tribunals  of 
all  States  will  pay  deference.  The  discovery  of  such 
principles,  to  be  successful,  must  rest  upon  a  scientific 
investigation  of  the  grounds,  logical,  social,  and  political, 
upon  which  all  laws  rest.  Apart  from  such  an  inves- 
tigation, the  attempt  in  any  given  country  to  reconcile 
what  is  called  "  the  conflict  of  laws "  will  always  be 
exposed  to  the  danger  of  favouring  the  interests  or  the 
prejudices  of  the  citizens  of  the  State  where  the  law  is 
applied.  Thereby  springs  up,  as  has  sprung  up,  an 
indefinite  diversity  in  the  private  International  law  of 
each  State,  in  the  place  of  an  identity  of  principle  and 
practice,  reflecting  the  identity  of  their  moral  claims. 


CHAPTER  11. 

PROVINCE  AND  LIMITS  OF  THE  SCIENCE  OP  LAW. 

In  order  to  ascertain  what  are  the  materials  of  the 
Science  of  Law,  it  will  be  well  to  cast  a  glance  at  the 
subject  matter,  in  its  rudest  and  most  inartificial  shape, 
to  which  the  science  relates.  For  this  purpose  the  case 
may  be  taken  of  a  nation  in  what  may  be  called  the 
early  manhood  of  its  life,  after  all  the  early  struggles  for 
its  self-conscious  existence  or  for  its  independence  are 
over,  and  yet  before  it  has  developed  within  itself  all  the 
complicated  machinery  of  a  highly-organized  commercial 
and  social  life.  In  such  a  State  there  must,  by  the  very 
hypothesis,  be  a  more  or  less  steadily  fixed  government, 
whether  that  government  approach  more  to  a  monarchical, 
or  an  aristocratical,  or  a  democratical  type.  The  stability 
of  the  State  and  its  self-dependence  imply  agriculture, 
and  agriculture  implies  property  or  ownership.  The 
division  of  labour,  again,  which  this  economical  condition 
presupposes,  involves  the  habit  of  making  contracts,  even 
though  they  be  of  the  most  elementary  form.  The  social 
condition  cannot  but  rest  upon  a  previously  developed, 
though  now  strongly  fortified,  domestic  condition,  and 
this  implies  the  fact  of  marriage,  and  the  relations  of 
husband  and  wife,  parent  and  child,  brother,  sister,  uncle, 
aunt,  nephew,  niece,  and  the  like.  The  still  remaining 
anarchical  tendencies  of  certain  individual  members  of  the 


14  THE   SCIENCE   OF   LAW. 

State,  lagging  behind  the  rest,  will  generate  occasional 
acts  of  violence  threatening,  directly  or  indirectly,  the 
very  life  and  existence  of  the  State.  These  acts  will 
excite  the  horror  of  all  the  more  orderly  members  of  the 
community,  and  will  be  denominated  by  some  such  term 
as  crimes. 

It  is  obvious  that  the  characteristic  classes  of  facts 
which  have  just  been  alluded  to  are  so  general  and  simple 
that  their  necessary  occurrence  at  a  certain  epoch  in  the 
progress  of  every  State  may  be  predicted  as  a  certainty. 
These  facts,  however,  in  themselves  are  of  the  utmost 
possible  moment,  and  involve,  by  their  permanence  and 
universality,  the  elementary  ingredients  of  a  Science  of 
Law. 

It  will  be  seen  that  these  facts,  looked  upon  as  a 
whole,  imply,  first,  a  certain  number  of  definite  relations 
of  persons  to  one  another,  whether  as  governors  or 
governed,  husbands  or  wives,  parents  or  children,  or  as 
otherwise  allied  by  blood  or  marriage.  Secondly,  these 
facts  involve  certain  determinate  relations  between  the 
persons  in  the  community,  in  respect  of  the  things  (or 
physical  substances)  appertaining  to  the  community  as 
a  whole.  These  things  severally  are  owned  by  one  or 
another,  and  not  by  the  rest.  The  ownership  of  these 
things  is  the  subject-matter  of  private  arrangements  and 
contracts  between  different  members  of  the  community. 
The  violent  or  fraudulent  abstraction  of  a  thing  owned 
from  the  owner  may  be  one  of  the  acts  on  the  general 
prevention  of  which  the  very  life  of  the  community  is 
held  to  depend,  and  as  such  is  denominated  a  crime. 

Again,  the  classes  of  facts  already  enumerated  have 
two  distinct  sides  to  them,  one  touching  the  outward 
lives  of  members  of  the  community,  that  is  their  acts; 
the  other  touching  their  inward  lives,  that  is  their 
thouohts  and  feelings.     Over  the  former  of  these  sides 


ITS  PROVI^X'E   AND   LIMITS.  15 

the  whole  of  the  community  can,  by  its  aggregate 
pressure,  exert  a  considerable  amount  of  force,  of  a 
specifically  ascertained  quantity  and  quality.  Over  the 
latter  side,  that  touching  the  thoughts  and  feelings  of 
individual  members,  the  utmost  direct  pressure  con- 
sciously exerted  by  the  community  is  of  the  feeblest 
efficacy,  and,  at  the  best,  indefinite  and  precarious  in  the 
highest  degree.  The  sphere  of  action  of  the  community 
with  respect  to  the  former,  or  the  acts  of  men,  is  that  of 
law.  The  sphere  of  action  with  respect  to  the  latter, 
that  is  the  thoughts  and  feelings,  though  not  exclusive 
of  acts,  is  morality.  The  relations  of  these  two  spheres 
to  each  other  will  be  investigated  in  the  next  chapter. 

In  the  mean  time  the  following  conclusions  have  been 
reached.  It  appears  that  the  characteristic  energy  of 
every  State  consists  in  the  reciprocal  influence  upon  each 
other  of  the  corporate  whole  and  the  constituent  elements, 
in  respect  of  certain  definitely  assignable  classes  of 
human  action.  These  classes  of  action  will  either  have 
reference  to  things  or  physical  substances,  as  objects  of 
ownership  or  use,  or  have  no  such  reference.  The 
actually  subsisting  relationship  to  each  other  of  the  cor- 
porate whole  and  the  constituent  personal  elements 
depends  upon  the  form  of  Government  which  casually 
happens  to  prevail. 

The  influence  of  the  constituent  personal  elements  of 
the  State  upon  its  governing  authority,  as  representing,  at 
any  epoch,  the  corporate  whole,  is  exhibited,  first,  in  the 
selection  (whether  conscious  or  unconscious)  of  that  govern- 
ing authority  according  to  its  specific  modifications  ;  and, 
secondly,  in  the  incessant  control  (conscious  or  uncon- 
scious) of  that  authority,  by  which  the  limits  of  its  free 
action  are  at  every  moment  defined.  The  influence  of  the 
governing  authority,  on  the. other  hand,  on  the  constituent 
personal  elements  of  the  State — that  is,  upon  its  so-called 


16  THE  SCIENCE   OF  LAW. 

"subjects" — is  exerted  through  two  separate  channels: 
one  that  of  administration;  the  other,  that  of  law.  In 
other  words,  the  pui'poses  of  Crovernment  are  effected 
either  through  the  medium  of  occasional  and,  as  it  were, 
spasmodic  injunctions,  or  through  general  rules. 

The  limits  within  which  any  given  governing  au- 
thority can  venture  to  issue  occasional  injunctions  must 
be  determined,  as  has  already  been  seen,  by  its  actual 
relations  to  all  the  constituent  personal  elements  of  the 
State.  These  limits  wiU  never  be  precisely  determined 
in  language,  though  they  will  be  marked  with  tolerable 
exactness  in  fact,  and  instinctively  appreciated  by  all 
persons  concerned  in  either  enlarging  or  protecting  them. 

The  determination  of  these  limits  of  administrative 
authority  might  be  looked  upon  as  forming  one  great 
branch  of  the  general  rules  which  constitute  the  other 
field  of  the  appropriate  activity  of  the  Government.  It 
composes  a  large  portion  of  what  is  called  "constitutional 
law."  The  anomaly,  however,  attaching  to  this  extension 
of  the  term  "  law "  is  obvious,  inasmuch  as,  if  the  name 
"law"  be  given  to  the  body  of  general  rules  through 
which  a  Government  exerts  its  appropriate  activity,  the 
same  term  "  law  "  cannot  be  simultaneously  applied  to 
the  limits  affixed  to  its  freedom  of  action.  But  this 
objection,  when  once  understood,  is  of  little  practical 
importance.  It  is  sufficient  to  establish  that  there 
are  certain  definite  limits  which  circumscribe  the  free 
action  of  every  governing  authority,  and  that  these 
limitations  admit  of  being  formulated  into  more  or  less 
precisely  articulated  propositions.  Such  propositions, 
capable  as  they  are  of  being  handled,  interpreted,  and  en- 
forced in  Courts  of  Justice,  have  all  the  essential  qualities 
that  belong  to  the  general  rules  framed  by  the  governing 
authority  itself  for  the  guidance  of  the  conduct  of  all 
persons  submitted  to  its  dominion. 


ITS  PEOViNCE   AND   LOUTS.  17 

The  topics  of  these  general  rules  or  laws  will  be 
those  matters  which  have  ah-eady  been  described  as 
essentially  inviting  the  direction  of  the  corporate 
strength  of  the  community.  Such  matters  are  the  rela- 
tions of  family  life,  so  far  as  outward  actions  and  public 
decorum  are  involved ;  the  security  of  property ;  the 
protection  of  individual  liberty;  the  enforcement  of 
contracts ;  and  the  prevention  of  those  violent  and 
exceptional  excesses  denominated  crimes. 

At  a  very  early  period  in  the  history  of  the  com- 
munity, the  interest  that  each  citizen  has  in  the  wise  and 
effectual  regulation  of  such  matters  as  these  becomes 
conspicuous  to  all,  and  more  especially  to  those  usually, 
or  on  the  average,  more  advanced  and  intelligent 
members  of  the  community  who  find  themselves  charged, 
through,  it  may  be,  a  series  of  political  vicissitudes,  Avith 
the  duties  of  Government.  It  is  probable  that  these 
several  and  various  objects  will  attach  to  themselves 
at  different  epochs  a  very  unequal  and  disproportionate 
share  of  attentioru 

The  security  of  property  may  alternate  with  security 
of  the  person  as  an  object  of  governmental  care ;  and  the 
classification  of  crimes  and  civil  injuries,  or  even  of  crimes 
and  religious  offences  or  sins,  may  be  in  the  highest 
degi-ee  irregular  and  unsystematic.  The  vices,  the  selfish- 
ness, the  ignorance  of  individual  rulers  will,  from  time  to 
time,  bring  into  relief  some  classes  of  laws  to  the  dis- 
paragement or  neglect  of  others.  At  one  epoch  a  State 
will  suffer  from  having  too  few  laws,  at  another  from 
having  too  many.  Particular  classes  of  persons  may  lose 
or  gain  at  one  period  of  legislation,  and  other  classes  may 
lose  or  gain  at  another.  These  eras  and  disasters  are 
of  none  the  lighter  consequence,  that  they  have  been 
universal.  It  is  in  spite  of  them,  and  not  by  means 
of  them,   that  States   have  finally  endured  and  fought 


18  THE   SCIENCE   OF   LAW. 

their  way  to  a  climax  of  intelligent  legislation  and 
conscious  political  life.  In  the  case  of  such  States, 
the  heart  of  the  people,  as  estimated  from  generation 
to  generation,  has  been  sound,  and  the  heads  of  their 
rulers  wise.  The  laws  have  gradually  been  adapted 
to  promote  individual  liberty,  and  not  to  impair  it ; 
and  the  province  of  Government  has  been  so  mapped 
out  as  to  make  Government  an  institution  conducive 
to  the  good  of  the  people,  and  not  a  mere  organ  for  the 
sacrifice  of  a  nation  to  a  class. 

It  will  have  been  seen,  in  the  above  description  of 
universal  phenomena,  that  a  purely  abstract  mode  of 
treatment  has  been  adopted.  So  far  as  universally 
confessed  historical  facts  are  pre-supposed,  the  truth  of 
such  facts  is  boldly  assumed.  But  the  main  bases  of 
the  arguments  are  the  elements  of  human  nature  itself 
as  they  are  written  not  only  in  the  venerable  documents 
of  ancient  history,  but  on  the  face  of  every  traveller's 
narrative,  of  every  ancient  body  of  laws,  of  every 
honoured  institution  subsisting  in  the  midst  of  the 
national  life  of  the  most  advanced  countries  of  Europe. 
It  is  obvious,  then,  that  the  generality  and  permanence 
of  the  momentous  facts  above  described  affords  the 
groundwork  of  a  great  science,  the  Science  of  Law, 

This  science  is  distinguishable  from  the  Science  of 
Ethics,  to  which  it  may  be  co-ordinated,  as  well  as  from 
the  Science  of  Politics,  to  which  it  is  subordinated.  The 
materials  of  the  science  are :  a  description  of  (1)  the  essen- 
tial institutions  of  human  society,  by  the  use  of  which  the 
objects  of  that  society  are  carried  out  through  the  medium 
of  Government ;  (2)  the  nature,  conditions,  and  limits  of 
laiv  as  an  expression  of  that  side  of  governmental  action 
which  consists  in  the^  enumeration  of  general  rules  of 
action ;  (3)  the  accidents  of  law,  such  as  language  and 
interpretationj  terminology,  and  devices  for  legislation. 


UNIVEKSALITY    OF   LEGAL   PRINCIPLES.  19 

When  these  materials  are  carefully  scrutinized,  it 
will  be  found  that  they  are  composed  of  elements  as 
permanent  and  universal  as  the  elements  of  human 
nature  itself.  All  that  is  arbitrary  and  idiosyncratic 
for  any  particular  State  is  banished  from  the  inquiry. 
The  surplus  is  as  applicable  to  one  State  as  to  another ; 
to  the  most  immature  .system  of  law  as  to  the  most 
advanced ;  to  an  eastern  as  to  a  western  community ;  to 
the  modern  as  to  the  ancient  world. 

It  is  curious  that  this  universality  and  permanence 
have  been  generally  conceded  to  ethical  truths,  and 
have  latterly  been  more  and  more  freely  conceded  even 
to  political  phenomena,  modified  indefinitely,  as  these 
must  needs  be,  by  the  excessive  complexity  of  the  con- 
ditions which  constitute  them.  But  the  region  of  law 
has,  up  to  a  recent  time,  been  held  to  be  the  natural 
home  of  caprice  and  irregularity.  Some  writers,  indeed, 
such  as  Montesquieu  and  M.  Charles  Comte,  have  quoted 
the  varying  laws  in  the  different  countries  of  the  world 
with  almost  an  ironical  gladness  at  their  bizarre  and 
parti-coloured  appearance.  It  has  been  very  generally 
held  that  Governments  have  been  created  by  violence 
or  accident,  and  have  reflected  the  vices  of  their  origin 
in  the  reckless  selfishness  of  their  legislation.  It  has 
been  said  again  and  again  that  force  is  the  origin  of  all 
social  institutions,  and  that  the  modes  of  directing  that 
force  have  been  determined  in  every  State  by  the  chance 
breath  of  political  caprice  or  passion.  It  has  been 
forgotten,  or  has  escaped  notice,  that  the  caprice  has 
been  accidental  and  the  order  is  essential. 

It  will  be  noticed  that  there  are  two  distinct  concep- 
tions of  human  society  which  are  both  possible,  if  not 
both  true,  and  that  the  existence  of  a  Science  of  Law 
follows  as  a  necessary  consequence  of  the  adoption  of  one 
conception,  but  does  not  follow  from  the  adoption  of  the 


20  THE   SCIE^X'E    OF   LAW. 

other.  It  may  be  said,  on  one  theory,  that  the  composi- 
tion and  action  of  human  society,  as  exhibited  in  the 
State,  is  due  to  nothing  else  than  the  aggregation  and 
mutual  repulsion  of  a  number  of  independent  and  self- 
conscious  atoms  which,  by  a  gradual  process  of  experi- 
ence, have  discovered  that  the  largest  measm-e  of 
individual  well-being  is  solely  attainable  through  certain 
special  modes  of  co-operation.  These  modes  of  co-opera- 
tion take  a  variety  of  forms,  but  the  most  signal  and 
important  are  those  implied  in  the  facts  of  government, 
ownership,  the  composition  of  the  family,  and  contract. 

According  to  the  theory  now  imder  review  every  one 
of  these  facts  is  merely  a  device  for  carrying  out  ends 
believed  to  be  beneficial.     The  facts  might  be  made  to 
vary  indefinitely,  and  it  is  alleged  to  be  conceivable  that 
any  one  of  them,  and  perhaps  every  one,  might  be  absent 
altogether  and  a  new  set  of  devices  take  their  place.     It 
is  held  to  be  possible  that  the  devices  themselves  will, 
at  no  remote  period,  be  discovered  to  be  rude  and  insuf- 
ficient,  and   that   many   superior    substitutes   could   be 
found  for  them,  even  if  they  do   not  already  exist  in 
certain  societies,  the  constitution  of  which  is  as  yet  un- 
explored.    The  machitiery  by  which  each  one  of  these 
classes    of   facts    is    called    into    being,   and    made    to 
subserve   its  end,   is  physical  force,  taking  the  form  of 
what  is  called  law.     The  physically  stronger  part  of  the 
community  compels  the  weaker  to  obey  a  certain  form 
of  governing  authority,  to  recognize  certain  descriptions 
of  ownership,  to  conform  their  lives  to  certain  canons  of 
domestic  life,  and  to  observe  certain  regulations  of  the 
market  and  the  exchange.     The  rules,  indeed,  enforced 
by  law  are,  for  the  most  part,  so  transparently  beneficial 
to  all  concerned  that  the  pressure  of  law  becomes  very 
slightly  felt,  and  the  physical  force  which  supports  it  is 
comparatively  seldom  called  into  play.     Nevertheless,  in 


TWO   THEORIES    OF   SOCIETY.  21 

the  theory  now  being  enunciated,  force  is  not  only 
present,  but  the  main  originator  and  upholder  of  every 
portion  of  the  fabric  of  social  order.  It  is  obvious  that, 
according  to  this  view,  there  can  only  be  a  Science  of 
Law  in  a  very  restricted  sense.  In  the  largest  sense 
of  the  expression  there  can  be  none.  Instead  of  law 
having  any  precise  and  determinate  character  impressed 
upon  it  and  upon  its  operation,  through  the  existence 
of  a  certain  number  of  immovable  social  institutions, 
which  react  back  as  effectually  upon  law  as  law  acts 
upon  them,  these  institutions  are  nothing  more  than  the 
creations  of  law  itself,  or  rather  the  accidental  shadows 
which  law  happens  to  cast. 

The  opposite  theory  of  society  starts  with  the  concep- 
tion that  society  is  not  developed  through  the  conflicting 
passions  of  individual  atoms  striving  to  organize  them- 
selves after  a  fashion  which  shall  best  promote  their 
own  well-being,  but  is  from  first  to  last  a  subsisting 
organization  made  up  of  constituent  groups  recipro- 
cally acting  and  reacting  upon  one  another.  The 
elemental  forms  and  tokens  of  this  organism  are  family 
life,  ownership,  and  government.  Each  of  these  pre- 
supposes co-operation  and  contribution  at  all  stages  in 
the  history  of  society,  though  under  different  forms ; 
each  of  them  implies  the  distribution  of  mankind  into 
small  groups  rather  than  into  large  masses  of  individual 
atoms.  It  is  difficult  to  say  that  any  one  of  these 
original  elements  has  precedence  in  point  of  time  over 
any  one  of  the  others.  It  is  more  true  to  say  that  when 
(jnce  they  are  all  found  to  be  in  existence,  the  State  has 
then  and  there  come  into  being.  A  very  short  time 
passes  before  another  element — that  of  contract — implied 
in  all  progressive  industrial  co-operation,  also  comes  to 
the  surface. 

There   are  thus    formed   in    the    primitive   State    a 


22  THE  SCIENCE   OF  LAW. 

certain  number  of  elemental  institutions  which  may 
be  looked  upon,  not  in  any  sense  as  the  creation 
of  law,  but  as  existing  independently  of  law ;  for  the 
spontaneous  arbitrary  action  of  a  primitive  Government 
resembles  what  is  now  called  "  Administration "  rather 
than  law.  It  is  true,  however,  that  law,  in  the  immature 
form  of  refmlated  usage,  will  be  found  to  be  one  of  the 
earliest  of  all  the  ingi*edients  of  the  State.  It  will  be, 
indeed,  even  from  the  first,  the  regulator  and  the  guide 
of  the  other  institutions  with  which  it  is  contemporary, 
but  is  in  no  sense  their  parent  or  solitary  guardian. 
Nevertheless,  as  time  goes  on,  the  support  that  law 
gives  to  the  integrity  of  family  life,  to  property,  to 
industrial  and  commercial  relations,  and  to  Government, 
becomes  important  in  the  highest  degree.  Indeed,  the 
prominence  of  the  legal  supervision  exercised  in  a  highly 
developed  State  over  all  these  departments,  affords  an 
apology  for  the  familiar  notion  that  they  are  aU  the 
arbitrary  creation  of  law  and  depend  for  then-  continued 
subsistence  upon  no  greater  or  deeper  sanction  than  that 
of  physical  force. 

If  it  be  true,  then,  as  this  last  theory  asserts,  that  in 
every  State  there  are  a  limited  number  of  gi-eat  pivots, 
or  turning  points,  round  which  human  society  revolves, 
and  that  law  only  plays  a  subordinate  part  in  regulating 
and  protecting  the  grand  mechanism,  it  is  obvious  that 
a  permanent  and  universal  body  of  facts  relative  to  law 
may  be  at  once  anticipated  to  result  from  the  permanence 
and  universality  of  the  great  groups  of  facts  with  which 
it  happens  to  be  mainly  conversant.  Experience  and 
observation  confinn  this  anticipation.  Every  known 
system  of  law,  both  of  ancient  and  modem  times,  in  all 
parts  of  the  world,  and  in  all  stages  of  national  develop- 
ment, distributes  itself  into  the  main  divisions  of  laws 
determining  (1)  the  nature,  functions,  and  limitations  of 


PERMANENCE   OF   LEGAL   TOPICS.  23 

the  governing  authority ;  (2)  the  forms  and  conditions  of 
ownership,  whether  of  land  or  other  things ;  (3)  the  rela- 
tions of  family  life;  and  (4)  the  binding  force  of  voluntary 
promises  or  contracts.  These  several  topics  afford  a 
natural  method  of  distribution  applicable  to  every  legal 
system  whatever ;  and  each  several  topic,  according  to  its 
peculiar  nature  and  to  the  incidents  by  which  it  is  inter- 
nally characterized,  affords  a  distinct  congeries  of  logical 
subdivisions  which  is  invariably  reproduced  over  and 
over  again. 

It  is,  then,  in  this  identity  of  structure  of  human 
society  in  every  State,  that  law  discovers  for  itself  the  basis 
of  its  constantly  recurrent  methods  of  classification  and 
its  unchangeable  conceptions.  There  are,  however,  cer- 
tain other  more  obvious  grounds  for  the  permanence  and 
invariability  of  legal  ideas  and  methods  which  follow 
from  the  identity  of  man's  physical,  logical,  and  ethical 
structure  in  all  times  and  in  all  parts  of  the  world,  within 
the  limits  to  which  observation  has  hitherto  extended. 

Law  in  its  outward  character  consists  of  a  body 
of  commands  addressed  to  individual  members  of  the 
human  race  forming  the  component  elements  of  a  State. 
The  issuing  of  commands  involves  the  possibility  of 
obedience  or  of  disobedience,  and  therein  supposes  the 
presence  of  will,  of  liberty  of  action,  and  of  the  amount 
of  intelligence  needed  to  understand  the  purport  of  the 
commands.  Attention  is  thereby  compelled  to  the  excep- 
tional cases  in  which  the  terms  of  the  command  cannot 
be  understood,  whether  through  temporary  incapacity, 
as  infancy,  error,  or  passing  disease ;  or  through  per- 
manent incapacity,  as  lifelong  insanity ;  or  in  which  the 
terms  cannot  be  complied  with  through  the  pressure  of 
external  force,  the  intei-ference  of  persons  actuated  by 
fraudulent  motives,  or  the  obstruction  of  physical  facts 
creating  the  condition  of  impossibility. 


24  THE   SCIENCE   OF   LAW. 

Supposing,  however,  that  the  command  can  be  under- 
stood and  can  be  obeyed,  there  will  be  nevertheless 
cases  presented  in  which  the  question  has  to  be  decided 
whether,  as  a  matter  of  fact,  the  command,  in  a  given  case, 
was  obeyed  or  not.  Here  are  let  in  all  the  obstacles 
inherent  in  human  nature  itself  to  acquiring  a  correct 
knowledge  of  facts.  All  the  current  imperfections  of 
human  observation,  all  the  insufficiency  of  language  and 
expression,  all  the  chicanery  and  double-mindedness,  all 
the  dulness  of  intellect,  by  which  it  becomes  so  hard  to 
pass  truth  on  unimpaired  from  hand  to  hand,  are  present 
to  hamper  the  effort  to  apply  and  execute  a  single  law. 
The  several  forms  of  these  obstacles,  however,  are  not 
peculiar  to  any  one  State  nor  to  any  one  period,  however 
their  magnitude  may  vary.  They  are  universally  present, 
and  can  be  classified  under  a  comprehensive  scheme. 

But  another  and  universal  class  of  difficulties  in  exe- 
cuting a  law  has  yet  to  be  mentioned.  It  may  be 
uncertain  what  is  the  form  and  intent  of  the  law  itself 
If  the  law  is  written,  the  terms  of  the  language  in 
which  it  is  written  may  admit  of  all  sorts  of  ambiguity 
or  vacillation  in  meaning,  or,  however  certain  the  terms 
themselves,  the  opposed  disputants  may  insist  on  different 
senses  being  put  upon  the  whole  text  of  the  command. 

If  the  law  is  unwritten,  and  has  to  be  gathered  either 
from  traditional  report  or  by  reference  to  the  rules  which 
have  been  laid  down  on  previous  occasions  in  cases  re- 
sembling the  one  now  calling  for  decision,  opportunity  is 
presented  for  all  sorts  of  logical  conflict  as  to  the  import 
of  the  previous  cases  cited  in  illustration,  or  as  to  the 
value  of  the  analogies  insisted  upon. 

In  other  words,  a  series  of  logical  processes  is  involved 
in  the  interpretation  of  every  law,  whether  written  or 
unwritten,  and  the  correctness  of  these  processes  may 
furnish  ground  for  indefinite  doubt  and  argument.     But 


LAW   REGULATING   THE   RELATIONS   OF   STATES.  25 

these  logical  processes  are  permanent  and  universal, 
and  the  application  of  them  to  the  interpretation  of  law- 
imparts  their  own  permanence  and  universality  to  the 
Science  of  Law. 

It  has  thus  been  ^een  that  the  intellectual  and  the 
ethical  nature  of  man  in  all  nations  tends  to  impart  a 
scientific  character  to  the  study  of  the  laws  by  which 
his  social  actions  are  regulated.  The  physical  facts  of 
his  life  and  bodily  constitution  tend  to  the  same  end. 
His  bii'th,  his  death,  his  age,  his  liability  to  diseases  and 
accidents  of  all  sorts,  his  capacity  of  locomotion,  and 
his  several  relations  to  time,  space,  quantity,  measure- 
ment, and  the  like,  further  discover  fresh  categories  into 
which  portions  of  the  laws  which  regulate  his  conduct, 
and  describe  his  situation,  under  varying  circumstances, 
in  relation  to  his  fellows,  necessarily  fall 

Besides  the  elements  of  the  Science  of  Law  which 
are  discoverable  within  the  limits  of  a  single  State,  and 
even  of  the  most  miniature  one,  there  are  others  which 
are  developed  only  in  the  course  of  time,  as  States  mul- 
tiply in  number,  and  as  their  relations  to  one  another 
become  strictly  defined. 

The  relations  of  States  to  one  another  are  twofold 
in  character.  Either  the  Governments  of  the  different 
States  have  relations  to  each  other,  or  the  individual 
citizens  of  the  different  States  have  relations  to  each 
other. 

The  first  class  of  relations  give  occasion  to  what  is 
called  Public  International  Law,  and  the  latter  to  wdiat 
is  sometimes  called,  with  less  precision.  Private  Inter- 
national Law. 

It  is  plain  that  if  the  rules  regulating  the  relations  of 
States  are  true  law  in  any  sense,  they  are  identical  for  all 
the  States  subject  to  them.  The  same  ought  to  be  the 
case  with  respect  to  the  rules  regulating  the  recognition 


26  THE   SCIENCE   OF   LAW. 

of  the  laws  of  foreign  States.  But  there  are  certain 
obstacles  which  have,  in  fact,  prevented  the  uniformity 
of  substance  which  might  have  been  anticipated  in  this 
region  of  law. 

The  rules  of  the  species  of  law  last  indicated  come 
into  being  through  the,  moral  claim  that  is  presented 
eitlier  by  persons  who,  not  being  citizens  of  a  given 
country,  come  to  the  courts  of  justice  of  that  country, 
while  sojourning  there,  to  have  rights  recognized  and  pro- 
tected which  they  have  acquired  in  their  own  country; 
or  by  those  who,  being  citizens  of  one  country,  but  having 
acquired  rights  while  sojourning  in  other  countries,  come 
to  the  courts  of  their  own  country  to  have  those  rights 
recognized  and  protected. 

On  every  occasion  for  inventing  rules  applicable  to 
these  cases,  the  question  is  presented  whether  the  courts 
of  justice  of  a  country  shall  recognize  rights  acquired 
either  by  their  own  citizens  or  by  foreigners  in  other 
countries  ;  or,  in  other  words,  whether  the  laws  of  other 
countries  g'ving  validity  to  those  rights  shall  or  shall 
not  be  held  to  be  effectual  in  the  courts  of  justice  which 
are  invited  to  interfera  The  cases  are  generally  further 
complicated  by  the  nature  of  the  processes  and  trans- 
actions out  of  which  the  asserted  rights  spring.  Part  of 
the  transactions  may  have  taken  place  in  one  country, 
and  part  in  another,  and  the  remedy  may  be  sought  for 
in  a  third.  Or  the  person  seeking  the  remedy,  or  against 
whom  the  remedy  is  sought,  may  be  the  citizen  of  one 
country,  have  his  permanent  residence  or  dotaicile  in 
another  country,  and  be  temporarily  sojourning  in  the 
country  in  which  the  remedy  is  sought. 

It  is  obvious,  from  a  mere  enumeration  and  descrip- 
tion of  the  cases  which  give  rise  to  rules,  that  the  purpose 
of  the  existence  of  these  niles  is  always  the  facilitation  of 
intercourse  between  the  citizens  of  different  States,  and 


PRIVATE   INTERNATIONAL   LAW.  27 

the  prevention  of  practical  injustice.  These  objects  must 
be  served  in  the  highest  degree,  if  the  greatest  possible 
uniformity  of  principle  obtain  in  the  courts  of  all 
nations  in  creating  and  applying  the  rules.  In  this  way 
reasonable  expectations  are  likely  to  be  best  satisfied, 
and  fraudulent  evasions  of  the  law  of  any  particular 
country  are  likely  most  efifectuaUy  to  be  prevented.  It 
happens,  however,  that,  owing  to  the  political  jealousies 
that  have  hitherto  kept  apart  the  most  considerable 
nations  of  Europe,  and  to  the  foolish  prejudice  with 
which  individual  nations  have  fostered  principles  of  law 
familiar  in  their  own  courts,  however  alien  to  the 
practice  of  all  other  countries,  there  have  hitherto  been 
made  only  very  imperfect  attempts  at  uniformity  either 
of  principle  or  practice  in  this  respect. 

It  is  probable  that  an  increasingly  clear  apprehension 
of  the  losfical  relations  of  the  different  branches  of  law, 
whether  as  touching  upon  ownership,  contract,  family 
life,  or  crime,  will  produce  the  effect  of  assimilating  the 
substance  as  well  as  the  form  of  the  rules  of  law  forming 
the  so-called  Private  International  Law  of  different 
countries.  This  end  is  perhaps  one  of  the  most  practical 
and  desirable  that  the  Science  of  Law  could  set  before 
itself,  though  it  will  need  at  every  point  the  aid  of  the 
Science  of  Legislation.  This  subject  will  be  recurred  to 
again  in  the  chapter  on  Laws  of  Procedure. 

It  appears,  then,  from  the  above  investigation,  that 
there  is  a  true  Science  of  Law  based  upon  the  irre- 
fi'agable,  permanent,  and  invariable  facts  of  the  consti- 
tution of  human  society,  as  exhibited  in  the  state  of 
the  physical,  logical,  and  ethical  constitution  of  man. 
The  objects  of  the  cultivation  of  this  science  are,  first, 
the  ready  understanding  of  every  system  of  national 
law,  through  a  firm  hold  being  obtained  upon'  its 
technical    structure,  its  topics,  its    logical    subdivisions. 


28  THE    SCIENCE   OF   LAW, 

and  the  methods  of  its  application ;  secondly,  an  orderly 
view  of  the  whole  system  of  law  of  any  one  country 
in  order  to  its  comprehensive  amendment,  reform,  and 
intelligent  reconstruction  in  obedience  to  the  needs  of 
a  new  political  and  social  era ;  thirdly,  the  attainment 
of  a  clearly  expressed,  rational,  and  well  developed 
system  of  Public  International  Law ;  and,  fourthly,  the 
reduction  of  the  irregular,  and  sometimes  chaotic,  or 
arbitrary,  rules  of  so-called  Private  International  Law, 
as  adopted  in  different  States,  to  an  uniform  system,  the 
same  for  aU  States. 


CHAPTER  IIL 


LAW  AiSTD  MORALITY. 


On  commencincr  the  investiofation  of  the  basis  of  the 
Science  of  Law,  it  was  noticed  that  there  were  two 
main  avenues  through  which  the  whole  social  force  of 
a  national  community  is  made  effective  towards  the 
direction,  and  the  constraint,  of  the  impulses  of  the 
individual  citizens  of  which  it  is  composed.  One  of 
these  avenues  was  said  to  be  law,  the  other,  to  be 
morality.  The  constant  confusion  of  these  two  con- 
ceptions, or  the  entire  merger  of  one  of  them  in  the 
other,  impresses  the  necessity  of  clearly  marking  out, 
at  this  stage,  their  respective  provinces. 

With  respect  to  the  bare  fact  that  the  two  fields  of 
law  and  of  morality  are  different,  not  to  say  opposed, 
scarcely  any  one  would  be  found  to  express  a  doubt. 
Casting  an  eye  over  the  general  activity  of  an  advanced 
community,  and  the  general  range  .of  the  thought  and 
occupations  of  a  single  individual  man  or  woman,  it  is 
found  that  the  thoughts,  affections,  and  energies  of  home 
life,  of  social  life,  of  industrial  or  commercial  life,  are 
the  most  absorbing  and  preponderating  of  the  facts  pre- 
sented. It  is  law,  indeed,  which  determines  decisively 
the  constitution  of  the  family ;  which  marks  out  the 
subject  matter  and  the  conditions  of  ownership ;  and 
which  gives  definiteness  and  precision,  as  well  as  what 
may  be  called  physical  validity,  to  business  transactions. 
3 


30  LAW   AND   MORALITY. 

But  within  the  limits  described  by  law,  there  is  a  very 
wide  scope  for  activity  to  which  law  cannot  reach. 

A  man  may  be  a  bad  husband,  a  bad  father,  a  bad 
guardian,  without  coming  into  conflict  with  the  rules 
of  a  single  law.  He  may  be  an  extortionate  landlord, 
a  wasteful  tenant,  a  hard  dealer,  an  unreliable  tradesmen, 
and  yet  the  legal  machineiy  of  the  country  may  be  |uit6 
powerless  to  stimulate  or  to  chastise  him.  He  may  be, 
furthermore,  a  self-seeking  politician,  an  unscrupulous 
demagogue,  or  an  indolent  aristocrat,  and  yet  satisfy  to 
the  utmost  the  claims  of  the  law  upon  him,  Never- 
theless it  is  just  in  the  conduct  of  these  several  relation- 
ships that  the  bulk  of  human  life  consists,  and  national 
prosperity  and  honour  depend. 

"  Quid  leges  sine  morihus  ? "  is  the  complaint  of  the 
old  Roman  poet,  and  the  question  may  be  asked  with 
equal  applicability  in  every  age.  It  is  vain  to  enact 
laws  if  the  bulk  of  the  community  do  not  care  to  have 
them  enforced.  It  is  almost  equally  vain  to  enact  them 
if  they  are  scrupulously  observed  in  the  letter  and  broken 
in  the  spirit.  It  is  of  no  good  to  prevent  glaring  frauds, 
if  people  are  habitually  and  persistently  treacherous.  It 
is  of  no  good  to  punish  perjury,  if  people  habitually  lie. 
It  is  of  no  good  to  punish  breaches  of  formal  contracts, 
if  the  keeping  of  a  common  promise  is  the  exception 
rather  than  the  rule. 

Admitting  the  existence  of  the  vast  field  of  morality 
as  contrasted  with  that  of  law,  a  celebrated  and  pro- 
bably inextinguishable  controversy  has  existed  as  to  the 
exact  means  through  which  moral  considerations  operate, 
and  by  which  the  conscience  or  moral  faculty  in  man  is 
finally  appealed  to.  It  is  not  strictly  relevant  to  the  present 
inquiry  to  plunge  into  the  details  of  the  controversy,  but 
the  nature  of  it  must  be  indicated  in  order  to  mark  the 
origin  of  the  confusion  between  morality  and  law. 


COMPETING   MORAL   THEORIES.  31 

The  just  action  of  man  in  his  moral  relations 
with  his  fellows  may  be  promoted  either  through  fear 
of  the  consequences  to  himself  of  unjust  action,  or 
through  cheerful  obedience  to  the  demands  of  a  clearly 
recognized  duty.  The  recognition  of  the  duty  when 
presented,  and  the  disposition  to  obey  its  demands,  may 
be  due  to  the  original  constitution  of  man,  or  to  the 
stimulus  supplied  by  social  contact,  or  to  experience  of 
the  advantages  of  a  ready  and  duteous  obedience.  One 
class  of  controversialists  have  resolved  the  whole  motives 
to  moral  action  into  such  as  are  supplied  by  the  stimulus 
of  hope  or  fear.  Another  class  have  imputed  these 
motives  to  nothing  else  than  the  promptings  of  an  uni- 
versally diffused  natural  instinct.  A  third  class  again 
give  what  is  due  both  to  the  original  constitution  of 
man  and  to  the  influence  of  social  experience,  but  also 
attribute  much  to  the  contagious  operation  of  a  range 
of  sentiments  diffused  throughout  society  in  such  a  way 
as  to  result  in  a  more  and  more  certainly  apprehended 
distinction  between  "right"  and  "wrong,"  and  to  produce 
l>y  inheritance  a  characteristic  change  for  the  better  in 
the  actual  constitution  of  man. 

According  to  this  last  theory,  morality,  or  the  pre- 
valence of  moral  sentiments  and  of  duteous  action,  is 
a  matter  of  extremely  gradual  growth  in  any  com- 
munity, and  is,  in  fact,  a  joint  product  of  aU  the 
other  physical  and  social  facts  by  which  the  community 
is  characterized.  This  prevalent  moral  condition  is, 
furthermore,  extremely  complex  in  its  constitution. 
It  reaches  to  every  part  of  human  life,  thought,  feeling, 
and  action.  Through  the  principles  of  association  of 
ideas,  operating  upon  the  nervous  sensitiveness  of  the 
physical  constitution  in  an  advanced  social  state,  its 
effects  are  multiplied  and  intensified  indefinitely  on  everv 
side. 


o2  LAW   AND   MORALITY. 

The  conscience  (which  is  a  curt  term  to  express 
the  moral  susceptibility  of  man)  becomes,  as  it  were, 
a  refined  organ  of  the  most  attenuated  edge  and  the 
most  delicate  temper.  Man  needs  no  longer  the  prompt- 
ings and  support  of  his  fellows  to  think,  feel,  and  act 
as  he  ought.  In  the  most  desolate  wilderness,  in  the 
hour  of  shipwreck,  in  the  lonely  mountain-top,  he  gives 
up  his  hfe  for  his  fellows  simply  because  he  listens  with 
keen  attention  to  the  voice  of  duty. 

It  must  be  conceded  by  all  that  if  the  above  is  a 
correct  picture  of  the  phenomena  of  morality  as  ex- 
hibited in  a  highly  advanced  country,  the  region  of  law 
is  infinitely  poor  and  narrow  when  contrasted  with  it. 
According  to  the  theory  that  the  existence  of  morality 
depends  upon  nothing  else  than  a  constantly  inculcated 
experience  of  the  personal  disadvantage,  in  the  long  run, 
of  immoral  actions,  it  is  difficult  to  draw  any  satisfactory 
line  between  the  provinces  of  morality  and  law.  They  both 
touch  outward  actions  alone.  They  both  depend  on  the 
influences  of  fear,  and,  indirectly,  on  the  presence  of 
superior  physical  force.  They  both  are  capable  of  being 
digested  into  a  body  of  rules  or  maxims.  The  only 
difference  between  the  two  is  to  be  found  in  the  persons 
by  whom  the  physical  pressure,  in  case  of  disobedience, 
is  applied,  and  in  the  persons  by  whom  the  rules  are  from 
time  to  time  constructed. 

On  the  theory  of  morality  here  maintained,  not  only 
are  law  and  morality  different,  but  they  are  the  comple- 
ment, and,  as  it  were,  the  very  antitheses  of  one  another. 
If  morality  looks  to  the  thought  and  feeling  rather  than 
to  the  acts,  though  to  the  acts  also,  law  looks  pre- 
eminently to  men's  acts,  and  only  to  thoughts  and  feel- 
ings so  far  as  is  needed  to  explain  the  real  character  of 
men's  acts. 

If    the    force   of   law    depends    upon    the    physical 


LAW   AND   MORALITY.  33 

pressure,  or  "  sanction,"  which  is  always  ready  to  sup- 
port it,  the  very  excellence  of  morality  is  that  it  induces 
men  to  adopt  a  higher .  standard  of  action  than  that 
supplied  by  those  persons  nearest  to  them  who  are 
most  capable  of  exerting  direct  physical  pressure.  The 
natural  tendency  of  law  is  to  genei-ate  fear ;  the  natural 
tendency  of  morality  is  to  make  men  brave. 

It  is  true  that  obedience  to  law,  by  giving  men 
leisure  and  freedom  to  be  moral,  co-operates  with 
morality  in  making  them  brave ;  but  the  bravery  comes 
from  the  morality  and  not  from  the  law.  This  is  seen  at 
once  when  laws  are  multiplied  unduly,  or  when  they  ai'e 
unwisely  made.  Lastly,  law  is  always  capable  of  being 
digested  into  rules  or  logical  propositions,  and  morality 
never. 

So  soon  as  it  is  attempted  to  bind  up  a  moral  prin- 
ciple into  a  logical  proposition,  the  life  of  the  principle  is 
threatened,  and  the  reign  of  casuistry  is  at  hand.  Every 
moral  principle  is  tested  and  described  solely  by  the 
circumstances  which  surround  its  application.  It  must 
rest  with  every  man  at  the  crisis  of  action  to  determine 
his  own  conduct.  He  may  be  largely  helped  in  cases  of 
doubt  by  the  memory  of  previous  examples,  by  the  ex- 
hortations of  moral  teachers,  and  even  by  compendious 
maxims  and  rules ;  but  no  rule  can  be  so  universal  as,  of 
necessity,  to  demand  his  uncompromising  submission. 
He  stands  alone  in  the  presence  of  his  trial,  and  no  other 
man  or  body  of  men  can  relieve  him  of  the  awful  re- 
sponsibility. Others  will  judge  him  after  the  act,  and  he 
will  judge  himself ;  but,  before  the  act,  he  has  nothing 
but  his  firm  grasp  upon  general  moral  principles  and  his 
own  sensitiveness  to  the  code  of  duty  to  rely  upon. 

Law,  on  the  other  hand,  eminently  deals  in  general 
rules ;  and  hence,  if  these  rules  are  properly  published,  no 
one  need  be  in  doubt  at  the  crisis  of  action  as  to  whether 


34  LAW  AND   MORALITY. 

the  act  he  is  contemplating  is  legal  or  illegal.  If  he  is  in 
doubt,  the  difficulty  comes  not  from  the  nature  of  law, 
but  from  the  accidentally  evil  .condition  of  the  laws  of 
his  own  country,  a  condition  which  is  capable  of  in- 
definite improvement. 

Thus,  the  characteristic  of  law  is  generality;  of 
morality,  individual  application.  It  follows  from  this 
that  the  execution  of  law  is  always  to  some  extent  rude* 
and  unsatisfactory.  The  same  penalty  for  a  broken 
law  is  exacted  from  persons  of  an  indefinite  number  of 
shades  of  moral  guilt,  from  persons  of  high  education 
and  culture  well  acquainted  with  the  provisions  of  the 
law  they  despise,  and  from  the  humblest  and  most 
illiterate  persons  in  the  country.  The  necessity  of  act- 
ing upon  outward  evidence,  the  value  of  which  can  be 
appreciated  by  the  mind  of  average  intelligence  and 
sensitiveness  to  moral  distinctions,  increases  this  rough- 
ness and  almost  coarseness  in  the  process  of  applying  a 
law  to  a  given  case. 

Various  devices,  indeed,  are  employed  to  correct 
the  consequences  of  this  want  of  refinement  and  elas- 
ticity. Such  is  "  equity "  in  the  older  sense  of  the 
term,  which  seems  to  have  been  familiar  to  Aristotle. 
The  purpose  of  this'  is  to  enable  a  judge,  in  any  case 
in  which  the  generality  of  a  rule  seems  to  press 
severely  upon  a  particular  person,  to  introduce,  at  his 
discretion,  such  modifications  of  the  rule  as  may  carry 
out  the  presumed  general  design  of  the  law -maker  with 
the  smallest  amount  of  deflection  from  the  rigid  lan- 
guage in  which  the  law  is  couched,  and  yet  with  a  more 
considerate  regard  for  all  the  circumstances  which 
surround  the  actual  case  than  that  language  was  capable 
of  anticipating. 

It  is  true  that  "  equity,"  as  administered  in  English 
Courts   of   Chancery,  arose    chiefly  from   the  historical 


EQUITY  AS  A  MEANS  OF  MORAL  ADJUSTMENT.    35 

fact  of  a  proved  inaptitude  of  tlie  English  Courts  of 
Common  Law  to  provide  all  the  remedies  demanded 
without  recourse  to  the  special  interference  of  the 
monarch  through  the  medium  of  his  chancellor ;  and  it 
is  also  true  that  the  development  of  "  equity  "  has  been 
due  to  the  growth  of  a  class  of  matters  and  relationships, 
to  the  complete  adjustment  of  which  the  rules  and 
machinery  of  the  common  law  have  proved  to  be  more 
and  more  unequal ;  while,  at  the  present  day,  the  rules  of 
"  equity  "  are  little  less  inelastic  than  rules  of  common 
law.  Nevertheless,  the  method  of  supplementing  the 
prevalent  legal  system  by  a  subsidiary  system  of  less 
rigidity,  and  of  greater  capacity  for  fine  moral  discrimi- 
nation, is  almost  universal  and  indeed  necessary  in  all 
advanced  countries  if  law  is  in  any  measure  to  carry  out 
the  dictates  of  practical  justice. 

It  may  happen  that  the  regular  and  the  subsidiary 
system  are  administered  by  different  judges  and  in 
different  courts,  as  hitherto  in  England ;  or  by  the  same 
judge  sitting  at  different  times  in  different  characters,  as 
at  Rome ;  or  by  the  same  judge  at  the  same  time  and  just 
as  the  superior  applicability  of  one  or  of  the  other  system 
presents  itself  to  notice,  as  in  foreign  countries  and  in 
some  States  of  the  American  Union  under  modern  codes. 
The  disadvantages  of  such  a  subsidiary  system  as  is  implied 
in  introducing  the  arbitrary  discretion  of  the  judge  in 
the  place  of  the  fixed  rules  prescribed  by  the  legislature, 
and  in  this  way  leaving  the  members  of  the  community 
without  a  fixed  guide  for  their  actions  or  a  reliable 
bulwark  against  the  prejudices  or  vagaries  of  individual 
judges,  are  here  recognized  to  the  full. 

There  is  needed,  indeed,  a  systematized  body  of 
principles  for  the  nicer  adjustment  of  laws,  as  well  as 
for  the  enunciation  of  laws  themselves,  and  there  must 
be  a  natural  tendency  in  such  a  body  of  principles  to 


8G  LAW   AND   ilORALITY. 

become  as  rigid  and  inflexible  as  the  rules  which  it 
is  their  pui-pose  to  qualify.  Nevertheless,  if  the  true 
nature  of  equity,  as  an  essential  supplement  to  laAv 
in  all  countries,  be  clearly  understood;  if  it  be  recog- 
nized that,  for  the  tracking  of  fraud  and  for  the 
supervision  of  legal  trusts,  no  bare  rules  of  law  can  in 
themselves  be  adequate  to  the  demand ;  if,  on  the  other 
hand,  the  dangers  of  anarchy  point  to  the  importance  of 
organizing  principles  of  equity  on  a  basis  of  regularity, 
uniformity,  and  stringency,  in  no  way  inferior  to  that  on 
which  law  itself  rests  — then  the  existence  of  equity,  so 
far  from  being  considered  as  an  unwholesome  growth  on 
a  legal  system,  must  be  rather  the  symptom  and  proof  of 
its  complete  development. 

It  scarcely  need  be  said  that  the  anomalies  presented 
up  to  the  present  time  in  England,  of  administering  law 
and  equity  in  different  courts,  and  of  fostering,  in  many 
ways,  the  theory  of  a  certain  irreconcilable  feud  between 
them,  is  not  only  preposterous  in  its  nature,  but  tends  to 
the  grossest  injustice,  delay,  and  inconvenience  in  its 
consequences  to  suitors. 

The  next  signal  mode  of  correcting  the  consequences 
following  from  the  hard  and  rigid  universality  of  legal 
rules  is  that  of  leaving  to  the  judges,  to  whom  the  actual 
execution  of  laws  appertains,  the  province  of  determin- 
ing, within  certain  limits,  the  penalty  to  be  exacted  for 
the  broken  law.  The  penalty  of  a  broken  law  generally 
has  two  aspects, — one,  that  of  suffering  to  be  inflicted  on 
the  transgressor,  in  order  to  reduce  the  probability  of 
a  repetition  of  the  offence  by  himself  or  by  another ; 
the  other,  that  of  compensation  to  the  person  more  im- 
mediately injured  by  the  broken  law  for  the  loss  or 
injmy  he  may  have  thereby  sustained. 

As  to  some  classes  of  laws,  especially  criminal  laws, 


PENALTY   AND   COMPENSATION.  37 

the  former  aspect  is  the  most  conspicuous,  or  (as  in 
England)  the  only  one.  As  to  other  classes  of  laws,  of 
what  may  be  called  a  quasi-criminal  nature,  as  laws  for 
the  protection  of  personal  security  and  personal  reputa- 
tion, the  two  aspects  of  punishing  the  transgressor  and 
compensating  the  sufferer  are  generally  looked  at 
together,  and  the  amount  and  quality  of  the  penalty 
may  have  to  be  determined  by  reference  to  both  these 
considerations  at  once. 

As  to  other  classes  of  laws,  again,  as  those  conferring 
and  protecting  rights  of  ownership  and  of  contract, 
which,  in  fact,  are  the  largest  portions  of  the  law  of  every 
advanced  community,  and  which  give  rise  to  the  largest 
amount  of  litigation,  compensation  rather  than  punish- 
ment is  generally  treated  as  the  object  of  the  penalty. 

The  grounds  of  these  common  distinctions  are  not 
far  to  look  for.  In  all  cases  the  object  is  to  prevent  the 
infraction  of  law  ;  but  to  increase  the  penalty  beyond 
the  exact  amount  needed  for  this  purpose  tends,  in  the 
long  run,  to  promote  impunity  and  lawlessness.  With 
respect  to  matters  touching  upon  the  very  existence  of 
the  community,  as  on  politics  and  social  organization, 
which  are  those  with  which  criminal  law  is  conversant, 
the  danger  to  the  community  of  the  prevalence  of  crimes 
is  out  of  all  proportion  to  the  special  losses  and  suffering 
of  individual  persons.  Hence  comes  the  necessity  of 
taking  a  standard  for  the  measurement  of  the  penalty 
wholly  different  from  that  supplied  by  the  measiu-e  of 
compensation  due  in  particular  cases. 

With  respect  to  many  matters  of  ownership  and  of 
contract,  again,  great  as  is  the  importance  of  the  laws 
reoidatino-  them,  vet  the  influence  and  means  of  owners 
and  of  contractors  are  sufficiently  great  to  ensure,  in  the 
long  run,  the  protection  of  their  interests ;  and  the 
measure  of  compensation  due  to  them  as  great  sections 


38  LAW   AND   MORALITY. 

of  society  is,  for  the  most  part,  sufficient  as  an  effective 
penalty  to  prevent  their  rights  being  generally  invaded. 
Rights  of  o^\^lership,  indeed,  in  all  communities,  are  so 
important  as  to  partake  of  both  kinds  of  protection,  the 
invasion  of  some  classes  of  them  falling  under  the 
cognizance  of  "  criminal  law,"  the  invasion  of  other 
classes  falling  under  that  of  "civil  law,"  and,  as  such, 
being  left  for  protection  to  the  interference,  by  way  of 
initiative,  of  the  o^^niers  themselves,  and  the  penalty 
being  estimated  by  the  measure  of  loss. 

It  is  thus  seen  that  the  only  region  of  judicial  discre- 
tion in  the  assignment  of  the  penalty  for  a  broken  law  is 
where  no  question  of  compensation  to  the  injured  person 
is  involved,  or  where  this  question  is  only  of  subordinate, 
or,  at  the  most,  of  co-ordinate  importance.  It  is  in 
the  region  of  criminal  law  and  quasi-criminal  law  that 
discretion  is  mainly  left  to  the  judge  to  apportion  the 
penalty  in  accordance  with  all  the  circumstances  of  the 
special  case,  and  in  this  way  he  has  an  opportunity  of 
correcting  the  hardship  and  practical  injustice  flowing 
from  the  rigid  application  of  a  general  rule. 

This  discretion  is,  however,  strictly  limited  by  the 
legislature  in  all  cases.  In  some  countries,  as  in  Eng- 
land, in  the  case  of  murder  and  high  treason,  no  discre- 
tion in  the  selection  or  the  modification  of  the  punish- 
ment is  left  to  the  judge.  If  it  be  proved  that  the 
accused  has  done  the  act  forbidden,  with  the  mental 
intent  requisite  to'  conviction,  there  is  no  alternative  but 
for  the  judge  to  pass  the  extreme  sentence  of  the  law. 

The  circumstances  may  differ  by  all  the  wddth  that 
separates  the  accomplished  and  highly-educated  poisoner 
from  the  agonized,  abused,  and  ignorant  mother  destroy- 
ing her  child,  knowing  not  what  she  does  ;  and  yet  the 
judge  has  no  alternative  whatever  to  relieve  him  from 
passing  the  same  sentence  of  death.      With  respect  to 


DISCRETIONARY   PENALTIES.  39 

other  crimes,  the  judicial  discretion  is  also  limited,  but 
the  superior  limit  is  generally  affixed,  and  not  the  infeiior 
one.  Thus  the  penalty  may  vary  from  penal  servitude  for 
life  to  imprisonment  for  a  day. 

In  some  countries  the  responsibility  is  shifted  from 
the  judge  to  the  jury,  and,  even  in  cases  of  technical 
murder,  the  jury  are  entitled  to  find  a  verdict  of  guilty, 
but  to  accompany  it  by  some  definite  characterization 
in  diminution  of  the  penalty. 

Whatever  be  the  mechanism  used,  the  purpose  and 
consequences  of  leaving  the  measure  of  the  actual 
penalty  to  be  fixed  at  the  time,  and  in  view  of  the 
special  circumstances  of  the  case,  are  to  leave  free  play 
for  the  consideration  of  the  previous  mental  and  moial 
condition  and  antecedents  at  the  time  of  perpetrating 
the  act. 

It  is  true  that  other  considerations  may  come  in  to 
direct  the  force  and  measure  of  the  penalty  besides  that 
of  regard  to  moral  justice.  The  increasing  or  diminishing 
frequency  of  a  particular  class  of  crimes;  the  proclivity  of 
certain  classes  of  men  (of  whom  the  prisoner  is  one)  to 
commit  the  crime  in  question,  and  the  enhanced  necessity 
of  making  the  punishment  exemplary;  the  extreme 
rareness  of  the  whole  circumstances,  and  the  strong  im- 
probability or  impossibility  of  their  being  presented 
again  so  as  to  favour  the  recurrence  of  such  a  crime ;  may 
also  properly  weigh  with  a  judge  in  affixing  the  penalty. 

But  a  scrupulous  regard  to  moral  justice  as  exhibited 
in  an  attentive  consideration  being  given  to  the  peculiar 
situation,  temptations,  opportunities,  and  previous  cha- 
racter of  the  prisoner,  is  likely  of  itself  to  tend,  quite  as 
much  as  mere  severity  of  punishment,  to  the  diminution 
of  crime. 

As  men  come  to  feel  that,  in  a  court  of  justice, 
they  will  get   what   they   really  deserve,   or,   in   other 


40  LAW   AND   MORALITY. 

words,  that  the  judgment  of  a  legal  tribunal  reflects, 
witl^  some  approach  to  accuracy,  the  judgment  of  their 
own  consciences  and  of  the  lest,  the  truest,  and  the  most 
tender-hearted  of  their  fellow-men,  their  reverence  for 
law  becomes  intensified,  and  their  fear  of  breaking  it 
becomes  more  effectually  and  constantly  active.  This 
subject  is  fully  treated  in  the  chapter  on  Criminal 
Law, 

A  third  mode  in  which  the  rigidity  of  law,  and  its  im- 
perfect moral  adaptability  to  individual  instances,  is 
corrected,  is  through  an  institution  which  has  obtained  in 
all  the  most  civilized  States  of  the  World — that  is,  the 
Prerogative  of  Pardon,  which  is  universally  vested  in 
the  head  of  the  executive.  This  prerogative,  which 
probably  at  the  first  was  little  more  than  the  expression 
of  a  certain  overweening  usurpation  of  the  monarch 
over  the  realm  of  law,  has  become  gradually  restricted  to 
the  only  uses  which  can  justify  the  existence  of  so  great, 
and  apparently  so  extravagant,  a  claim. 

If  pressed  to  the  full,  the  prerogative  of  pardon  might 
imply  practically  a  claim  to  override  every  law  by  the 
simple  process  of  pardoning  the  transgressor  of  law,  or  of 
over-riding  such  laws  as  might  be  inconvenient  in  their 
operation  to  the  person  in  whom  the  prerogative  reposed. 
It  is  well  known  that  the  Tudor  and  Stuart  kings  of 
England  affected,  both  practically  and  theoretically,  to 
trample  upon  the  liberty  of  the  country  and  upon  the 
co-ordinate  powers  of  the  two  other  branches  of  the 
legislature  by  proclamations,  dispensations,  and  the  un- 
constitutional exercise  of  the  prerogative  of  pardon 

It  was  one  of  the  articles  of  the  Act  of  Settlement 
that  a  royal  pardon  should  not  be  pleaded  to  an 
impeachment  by  the  House  of  Commons.  This  clause, 
indeed,  left  the  prerogative  of  pardoning  a  prisoner  con- 


PREROGATIVE   OF   PARDON.  41 

victed  on  an  impeachment  where  it  was,  and  it  docs 
not  seem  that  this  prerogative  can  be  usefully  checked 
in  any  other  way  than  by  vigilant  criticism  of  the 
responsible  ministers  of  the  CrowTi.  The  prerogative  of 
pardon,  indeed,  when  thus  Kmited  and  guarded  in  its 
exercise,  is  the  most  important  mode  of  correcting  the 
frightful  perversions  of  justice  that  might  otherwise 
follow  from  an  unfettered  career  of  mere  legal  rules.  If 
after  the  trial  and  conviction  of  a  prisoner  new  evidence 
is  produced,  which  could  not  be  produced  at  the  time 
— as  through  the  accidental  discovery  of  documents, 
the  return  from  abroad  or  recovery  from  illness  of  an 
essential  witness,  the  confession  of  another  person — it 
would  be  an  outrage  upon  public  feeling  to  persist  in 
punishing  the  person  transparently  proved,  if  not  by  the 
court  of  justice,  at  all  events  by  the  invincible  eloquence 
of  facts,  to  be  guiltless.  In  such  a  case  the  only  avenue 
to  righting  the  sentence  of  the  court  must  be  sought 
through  what  is  called  the  ''prerogative  of  mercy  "  lodged 
with  the  Executive. 

There  are  other  cases  in  Avhich  the  faculty  of  gi'ant- 
ing  a  remission  or  diminution  of  the  penalty  may 
also  properly  belong  to  the  Executive.  Thus,  in  cases 
of  what  are  sometimes  called  "  political  crimes,"  in 
which  the  perpetrators  of  them  are  as  often  as  not 
persons  of  virtuous  habits  and  tendencies,  and  even, 
in  some  cases,  of  a  heroic  spirit  of  self-sacritice,  it  must 
depend  entirely  upon  the  danger  to  the  community 
to  be  apprehended  from  a  repetition  of  such  particular 
offences  whether  any  and  what  penalty  ought  to  be 
exacted.  It  may  not  be  wise  to  leave  to  the  judge 
the  supreme  decision  of  a  question  more  of  political 
circumspection  than  of  simple  moral  insight.  The  usual, 
if  not  necessary,  rule  is  to  leave  a  considerable  amount  of 
choice  of  penalties  to  the  judge,  but  to  reserve  to  the 


42  LAW   AND   MORALITY. 

Executive  the  opportunity  of  entirely  remitting,  or,  as 
political  sagacity  prompts,  from  time  to  time  qualifying, 
the  penalty  exacted  by  the  strict  letter  of  the  law.  These 
remarks,  while  justifying  the  institution  of  the  preroga- 
tive of  pardon,  none  the  less  point  to  the  essential  im- 
portance of  hedging  round  the  exercise  of  this  prerogative 
with  all  the  safeguards  which  a  vigilant  legislature  and 
an  active  public  opinion  can  devise. 

It  has  thus  been  seen  that,  while  the  region  of  law 
is  necessarily  and  permanently  diflerent  from  that  of 
morality,  and  while  legal  rules  must,  from  their  very 
nature,  only  imperfectly  carry  out  the  ends  of  moral 
justice,  yet  the  necessity  of  adjusting,  as  far  as  possible, 
this  inherent  inadequacy  has  been  fully  appreciated  in  all 
highly-developed  States,  and  the  institution  of  equity, 
the  discretionary  faculty  of  punishment,  and  the  preroga- 
tive of  pardon  are  three  notable  devices  for  bringing  the 
operation  of  laws  into  closer  accord  with  the  requirements 
of  abstract  justice.  It  remains  to  ascertain  the  true 
import  of  law  as  the  nurse  and  support  of  morality, 
especially  in  the  earlier  stages  of  national  development. 

It  has  been  observed  that  all  the  essential  institutions 
of  the  State  can  be  decomposed  into  government,  the 
family,  jiroperty,  and  contract.  It  was  noted  that  the 
inquiry  into  the  historical  and  ethical  origin  of  these  in- 
stitutions has  given  rise  to  various  schools  of  opinion,  and 
though  an  approximation  to  agreement  may  be  more  and 
more  expected,  still  it  is  probable  that  room  for  great 
divergencies  of  thought  will  be  presented  to  the  end  of 
time.  Nevertheless  all  the  theories  on  the  subject  concur 
in  the  view  of  the  extreme  momentousness  of  each  par- 
ticular institution,  and  in  appreciation  of  the  indispensable 
place  it  holds  in  the  progress  of  national  life.  Whatever 
place  law  occupies  in  the  original  foundation,  or  (as  some 


MORAL   CLAIMS   AND   LEGAL   RIGHTS.  43 

say)  the  invention,  of  these  several  institutions,  it  must  be 
confessed  that  the  functions  performed  by  law  in  marking- 
out  and  giving  stability  to  them  are  of  the  utmost  import- 
ance. 

It  will  shortly  be  seen,  in  speaking  of  the  growth 
of  law,  that  it  is  through  the  actual  controversies  that 
arise  out  of  men's  moral  claims  and  moral  situations, 
and  which  call  for  formal  decision  at  the  hands  either  of 
the  governing  authority  or  of  accidentally  selected  um- 
pires, that  legal  rules  first  come  into  being.  It  is  because 
men  are  doubtful  about  what  is  and  what  ought  to  be 
that  law  comes  in  to  determine  what  shall  be. 

From  this  time  moral  claims  become  converted  into 
legal  rio-hts,  and  moral  ties  into  legal  duties.  At  first  the 
course  is  vacillating,  uncertain,  and  ofttimes  retrograde  ; 
but  the  hardening  and  determining  process  is  ceaselessly 
at  work.  Marriage  loses  all  its  more  casual  attributes,  and 
has  its  forms,  its  limitations,  and  its  social  consequences 
impressed  upon  it  in  the  most  unmistakable  lines.  So 
likewise  ownership  and  all  its  varying  forms,  its  duration 
and  conditions,  its  subject  matter,  its  liabilities,  and  the 
modes  of  its  acquisition,  loss,  and  protection,  become 
severely  determined  and  lifted  entirely  out  of  the  prior 
state  of  precarious  sufierance.  Contract,  again,  has  all  its 
forms,  possibilities,  and  incidents  sharply  marked,  to  such 
an  extent,  indeed,  that  the  legal  features  for  a  time  seem 
to  absorb  or  suppress  the  moral  ones.  The  same  process 
takes  place,  though  more  slowly  and  tentatively,  with 
Government,  legal  limits  being  gradually  imposed  on 
the  arbitrary  disposition  of  the  Government  and  the 
notion  of  a  constitution  superior  to  tile  actual  governing 
authority  gradually  making  its  way. 

In  all  this  story  of  universal  development  it  will  be 
observed  that  law  can  only  take  under  its  shadow  a  very 
small  portion  of  the  inherent  life  and  force  of  each  insti- 


44  LAW   AND   ilORALITY. 

tution,  though  to  the  whole  institution  it  gives  so  much. 
Law,  indeed,  marks  out  the  Hmits  of  the  family,  and  pro- 
vides general  remedies  for  the  grosser  violations  of  the 
integrity  of  the  family.  But  it  can  go,  and  does  go,  a 
very  little  way  towards  making  good  husbands  and  wives, 
fathers  and  mothers,  sons  and  daughters,  brothers  and 
sisters.  Law  can  create  and  define  the  relations  of  land- 
lord and  tenant,  farmer  and  labourer ;  but  it  is  well 
known  how  little  it  can  do  directly  to  guide  landlords  in 
the  rent  they  morally  ought  to  exact,  or  the  compensation 
for  improvements  made  by  an  outgoing  tenant  which 
they  ought  to  allow,  or  to  compel  farmers  to  remunerate 
their  labourers,  build  cottages  for  them,  and  exact  work 
from  them  in  the  way  least  likely  to  render  them  paupers 
in  their  old  age. 

So  with  contract.  The  operations  of  the  market 
must  meet  with  some  other  stimulus  and  euide  than 
legal  rules,  if  men  are  to  be  scrupulously  honest  in 
keeping  their  engagements,  in  selling  pure  and  unadul- 
terated goods,  in  laying  bare  all  the  hidden  vices  of 
the  things  for  which  they  are  endeavouring  to  find 
customers.  Law  can  do  none  of  these  things  directly. 
Indeed,  by  trying  to  do  them  directly  it  may  only 
weaken  that  force  of  morality  which  alone  is  equal  to  the 
task. 

Law  can  do  much,  however,  indirectly.  It  defines 
the  field  and  the  different  portions  of  the  field  within 
which  moral  agencies  are  called  to  work.  Law  is  the 
constant  and  visible  re]3resentative  of  an  universal 
interest  outside  the  individual  interest  of  each  man  and 
household.  The  best  and  most  vigilant  of  men  might  be 
tempted  to"  invade  the  moral  claims  of  their  neighbours  if 
they  were  not  forcibly  reminded  of  the  great  and  strong 
fence  by  which  those  claims  are  encomj)assed.  In  the 
same  way  the  weak,  credulous,  and  thoughtless  might  be 


LAW   AND   PERSONAL   LIBERTY,  45 

easily  seduced  from  time  to  time  to  part  with  their  moral 
birthright  of  liberty,  and  to  render  themselves  the  con- 
temptible slaves  of  the  strongest  in  the  neighbourhood,  if 
the  law  did  not  stand  by  them,  to  remind  them  as  much 
of  their  moral  as  of  their  legal  rights,  and  to  warn  trans- 
gressors of  their  legal  as  well  as  of  their  moral  duties. 
Thus  it  is  well  for  all  men,  in  the  course  of  perfecting 
their  moral  nature,  to  have  ever  at  hand  a  grand,  visible, 
and  practical  witness  to  the  claims  of  their  brother  men, 
to  the  subordination  of  the  individual  person  to  the  State, 
and  of  the  subserviency  of  all  individual  action  and  life 
to  the  accomplishment  of  the  general  aim  of  humanity. 

Lastly,  and  perhaps  more  than  all,  it  is  in  securing 
to  individual  men  a  free  field  of  undisturbed  work  and 
life — in  other  words,  in  securing  personal  liberty — that 
law  exhibits  its  main  moral  efficacy.  Men  cannot  be 
Aartuous  unless  they  are  free,  and  they  cannot  be  free 
unless  they  are  strongly  guarded  against  the  occasional 
licence  or  permanent  selfishness  of  those  who  migiit  im- 
pair their  security.  Nor  is  it  only  against  the  violent  and 
the  bad  that  this  security  for  freedom  is  needed.  It  is 
needed  likewise  against  the  well-intentioned  and  con- 
scientious, who  have  not  learned  to  respect  the  solitude  of 
the  human  spirit,  nor  to  refrain  from  giving  rein  to 
their  own  capricious  tempers  and  passions.  Law  respects 
and  guards  the  liberty  of  all,  and,  before  the  law  itself  is 
broken,  shelters  the  independence  of  the  vile  and  worth- 
less with  as  much  jealousy  and  alacrity  as  that  of  the 
deserving  and  the  rich. 

It  may  be,  indeed,  that  in  all  countries,  and  in  this 
country  at  this  day,  there  have  been  and  are  laws 
which  seem  to  offend  against  all  these  principles,  which 
sacrifice  the  liberty  of  the  poor  to  the  vices  of  the 
rich,  or,  in  the  name  of  free  institutions,  confiscate 
liberty  in  search  of  passing  panaceas  which  have  tem- 


40  LAW   AND   MORALITY. 

porarily  beguiled  a  dominant  section.  The  whole  story 
of  law,  as  the  story  of  every  other  department  of 
human  life,  is  the  story  of  human  error,  but  also  the 
story  of  truth  and  of  the  resistance  to  error,  not  to  say 
of  triumph  over  it.  It  is  by  virtue  of  the  good  laws 
and  not  of  the  bad  that  States  have  progressed  and 
nations  continued  •  to  live ;  and  it  is  because  the  vast 
bulk  of  the  law  in  all  countries,  even  the  worst  governed, 
has  generally  done  more  to  secure  human  freedom  than 
to  impair  it,  that  human  civilization  has  progressed  as 
far  as  it  has. 


CHAPTER  IV. 

THE  GROWTH  OF  LAW. 

The  history  of  the  growth  of  law  has  had  great  light 
thrown  upon  it  in  recent  times  from  a  number  of  quarters. 
Sir  H.  Maine,  in  his  work  on  "  Ancient  Law,"  has  pointed 
out  the  bearing  upon  the  history  of  early  law,  and  upon 
the  institutions  which  may  be  said  to  have  preceded  a 
condition  of  fully-developed  law,  of  such  monuments 
of  ancient  (especially  of  Roman)  law,  as  still  survive. 
The  same  eminent  writer,  in  his  work  on  "  Village  Com- 
munities," drawing  his  examples  mainly  from  India,  has 
attracted  attention  to  an  era,  occurring  in  certain  societies 
at  all  events,  in  which  there  is  no  true  law  in  the  severe 
sense  affixed  to  the  term  by  Bentham  and  Austin,  but  in 
which  a  reign  of  custom  prevails  so  ubiquitously  and  so 
regularly  as  to  present  all  the  chief  and  most  practically 
important  phenomena  of  law. 

The  extreme  variety  of  the  actual  forms  of  primitive 
society,  whether  in  respect  of  the  organization  of  the 
family,  of  the  forms  and  conditions  of  ownership,  or  of 
the  nucleus  of  government,  have  been  recently  made  the 
object  of  extensive  comparative  research,  to  which  Sir 
J.  Lubbock  in  this  country,  and  a  succession  of  erudite 
writers  abroad,  have  contriljuted. 

The  general  result  of  these  investigations  touches  a 
period  in  history  anterior  to  the  development  of  law  in 


48  THE   GROWTH   OF   LAW. 

the  strictly  political  use  of  the  term,  and  therefore  it  would 
be  out  of  place  to  do  more  than  to  allude  to  them  here. 
The  general  phenomena  of  custom,  however,  as  it  consti- 
tutes the  immediate  antecedent  of  true  law,  and  always 
exists  side  by  side  with  it,  ever  supplementing  and 
refoiming  it,  strictly  belong  to  the  pi-ef  ent  inquiry. 

A  Icvw,  in  the  strictly  political  sense  of  the  term, — for 
it  is  obvious  that  there  are  a  variety  of  other  senses, 
theological,  ethical,  and  merely  metaphorical, — is  a  com- 
mand proceeding  from  the  supreme  political  autJiority 
of  a  State,  and  addressed  to  the  persons  ivho  are  the 
sid)ject8  of  that  authority.  By  noticing  with  care  the 
different  elements  which  enter  into  this  definition,  it 
will  be  more  easy  to  trace  the  steps  by  which  the  era  of 
law  in  the  fullest  sense  of  the  term  is  finally  reached. 

It  is  manifest,  in  the  first  place,  that  in  every  true  State 
(a  term  which  itself  needs  exact  circumscription,  but 
which  may  here  be  briefly  said  to  denote  "  an  organized 
poi'tion  of  the  human  family  looked  upon  as  a  subject 
mcdter  of  Government ")  there  is  at  every  moment  of  its 
existence  a  Supreme  Political  Authority — that  is,  a  person 
or  body  of  persons  who  at  the  time  are  generally  obeyed 
by  the  bulk  of  the  community.  This  authority  possesse.  ■, 
by  the  hypothesis,  the  supreme  power  in  the  State,  and 
can  accompany  all  its  commands  by  the  application  of 
physical  force  in  the  case  of  actual  or  threatened  dis- 
obedience. It  is  said  that  all  law  is  the  expression  of  the 
will  of  this  authority,  or,  as  the  definition  has  it,  every 
law  is  a  command  proceeding  from  that  authority.  It  is 
clear,  however,  that  this  assertion  is  only  approximately 
true,  because  the  larger  mass  of  the  law  of  ever}^  country 
has  begun  its  growth  long  before  the  existence  of  the 
supreme  political  authority  in  being  at  any  particular 
moment ;  and  this  mass  of  law  was  silently  recognized, 
and  indeed  formed  the  support  of  some  of  the  main  insti- 


ORIGIN   OF   CUSTOMS.  4-0 

tutions  of  the  State,  long  before  it  attracted  the  attention 
of  that  authority.  Therefore  only  by  imputation  can  it 
be  said  to  have  proceeded  from  it. 

It  is  true,  however,  that  the  supreme  political  au- 
thority might  alter  the  whole  law  if  it  thought  proper 
to  do  so,  though  if  it  attempted  to  do  that,  or  any  other 
act  which  was  decisively  unpopular,  its  o'svn  existence 
might  be  threatened.  Nevertheless,  the  supreme  political 
authority  is  generally  largely  occupied  in  devising 
changes  of  the  existing  law ;  and,  as  that  authority  is 
the  only  one  from  which  the  law  can  experience  any 
conscious  change,  it  is  not  inaorrect  to  say  that  all  the 
law  of  a  nation  proceeds  from  the  existing  political 
authority.  Thus  the  complete  development  of  such  an 
authority  is  a  condition  precedent  to  the  existence  of 
true  law. 

It  is,  however,  a  matter  of  historical  observation  that, 
long  before  any  supreme  political  authority  has  come  into 
being,  a  series  of  practical  rules  determine  the  main 
relations  of  family  life,  the  conditions  of  ownership,  the 
punishment  of  the  more  violent  forms  of  moral  wrono-- 
doing,  and  the  adjustment  of  contracts.  The  mode  in 
which  such  rules  are  formulated  seems  to  be  the  follow- 
ing:— A  spontaneous  practice  is  first  followed,  and  if  good 
and  useful,  is  generally  copied  over  and  over  again,  the 
more  so  as  habit  and  association  always  render  the  imita- 
tion of  an  old  and  familiar  practice  easier  than  inventing 
a  new  and  untried  one. 

It  has  been  well  observed  by  Sir  H.  Maine  ("  Village 
Communities,"  p.  58),  in  reference,  at  the  least,  to  Aryan 
communities,-  that  an  important  distinction  has  to  be 
drawn  between  customs  which  do  and  customs  which 
do  not  correspond  to  practices.  "If  a  tradition  be  not 
kept  steady  by  con-esponding  practice,  it  may  be  warped 
by  all  sorts  of  extraneous  influences."     It  is,  however. 


50  THE   GROWTH   OF   LAW. 

the  peculiarity  of  the  class  of  customs  which  are  the 
true  germs  of  future  law,  that  they  are  being  constantly 
brought  to  mind  and  tested  by  application  to  action. 
Customs  prescribing  the  formalities  and  conditions  of 
marriage  are  brought  into  distinct  consciousness  on  the 
formation  of  every  fresh  family.  The  incessantly  active 
vicissitudes  of  birth  and  death  in  every  community  call 
for  an  unintermittent  series  of  decisions  upon  the  com- 
peting claims  of  survivors  in  matters  of  ownership,  and 
upon  the  responsibilities  of  those  who  may  ah-eady  be 
called  "  personal  representatives  "  in  matters  of  contract. 

Government,  again,  is  the  most  restless  of  all  insti- 
tutions, and  the  most  intractable  under  the  yoke  of 
custom,  and  so  far  as  its  activity  or  its  forms  are 
regulated  by  traditional  usage,  the  validity  and  integrity 
of  those  forms  are  being  constantly  exposed  to  the  most 
searching  and  public  test.  While,  then,  it  is  true,  as  Su" 
H.  Maine  has  well  described  it,  that  it  is  "  naturally 
organized  groups  of  men  who  are  obstinate  conservators 
of  traditional  law,  but  that  the  accuracy  of  the  tradition 
diminishes  as  the  group  becomes  larger  and  wider,"  it  is 
also  true  that  customs  which  share  the  nature,  and  are 
the  germ,  of  law  are,  from  the  quality  of  their  subject 
matter,  far  more  than  religious  or  social  customs  likely  to 
be  handed  on  in  an  unbroken  integrity  from  one  age  to 
another. 

The  main  machinery  for  the  conversion  of  desultory 
and  uncertain  customs  into  fixed  rules,  needing  only  the 
complete  development  of  Government  to  transmute  them 
into  true  law,  are  the  decisions  which  are  constantly 
demanded  for  the  purpose  of  ascertaining,  for  a  practical 
purpose,  the  true  purport  and  extent  of  an  alleged  custom. 
The  decision  may  be  called  for  at  the  hands  of  a  casually 
selected  arbitrator,  or  of  a  permanently  constituted 
village  council,  or  of  some  foreign  and  remote  authority 


CONVERSION   OF   CUSTOMS   INTO   LAWS.  51 

specially  invited  to  interpose.  The  grounds  of  the  de- 
cision may  be  either  the  personal  memory  of  the  judge  or 
judges,  as  stored  with  past  recollections  and  hearsays,  or 
a  view  of  general  expediency,  or  considerations  purely 
analogical  in  their  nature.  Whatever  the  grounds  may 
be,  the  decision  is  something  more  than  the  custom  which 
it  is  called  to  interpret  and  solidify.  It  furnishes  the 
first  of  what  may  be  styled  a  secondary  range  of  customs 
running  parallel  with  the  original  and  actual  ones.  It 
becomes  a  precedent  itself,  and,  from  the  particulars  of  its 
form  and  the  solemnity  of  the  cii'ciimstances  out  of  which 
it  has  sprung,  is  likely  to  outweigh  in  authority  the 
original  material  on  which  it  is  based.  It  needs  only  the 
complete  institution  of  Government,  and  the  recognition 
and  public  authorization  of  the  judge,  to  perfect  the  truly 
legal  character  of  these  occasional  decisions. 

•  Though  many  wi'iters  have  dwelt  on  the  above 
phenomena  as  the  typical  modes  in  which  true  law 
comes  into  being  in  all  self-developed  communities,  yet 
the  generalization  has  not  been  sufficiently  insisted 
upon  that  it  is  on  the  side  of  Procedure  that  aU  law 
is  originally  presented,  and  that  it  is  the  part  of  law 
dealing  with  Procedure  which  most  pertinaciously  resists 
the  hand  of  conscious  change  and  legislation.  The  pro- 
cess of  a  legal  controversy,  so  far  as  that  takes  place 
before  a  public  tribunal,  affords  the  only  occasion  on 
which — in  primitive  communities,  at  all  events — public 
attention  is  arrested  by  the  presence  of  law.  The  large 
bulk  of  rules  which  are,  in  practice,-  observed  are 
accepted  without  thought  or  criticism.  They  form  part 
of  the  inseparable  consciousness  of  the  people,  and 
prescribe  the  same  sort  of  natural  limitations  to  their 
activity  as  do  the  conditions  of  time  and  space  and  the 
inevitable  accidents  befalling  human  nature. 

It  is  thus  only  when  its  peaceful  order  is  violently 


52  INFLUENCE   OF   JUDICIAL    FORMS. 

broken  that  a  new-found  consciousness  of  disorder  brings 
with  it  the  first  craving  after  conscious  order.  A  vindi- 
cation of  the  existence  of  this  order  is  sought  for,  and 
the  public  vindication  by  the  judge,  after  careful  and 
solemn  inquiry,  results  in  creating  for  all  the  beholders  a 
new  realm  of  conscious  law.  The  outward  circumstances 
of  the  trial,  however  inartificial  and  rudimentary,  the 
forms  of  the  proceedings,  the  rapt  attention  or  earnest 
ofesticulations  of  those  concerned,  the  reference  to  the 
past,  and  the  final  and  formal  delivery  of  the  sentence 
are  all  calculated  to  impress  the  imagination  and  give 
all  the  elements  of  form,  colour,  and  substance  by  which 
the  firmest  associations  are  moulded  and  riveted.  The 
formalities  of  the  court  of  justice  pass  back  into 
common  life,  and  become  the  type  Tipon  which  the  out- 
ward solemnities  attending  the  more  important  trans- 
actions of  commercial  and  social  life  are  fashioned. 

It  need  not  be  said  that  all  the  circumstances  that 
could  combine  to  render  institutions  at  once  deeply 
rooted  in  the  popu^lar  affection  and  unalterable  in  their 
structure  meet  here.  The  judge  can  rely,  and  must  rely, 
more  upon  ancient  precedent  than  aught  else  in  elaborating 
his  decision.  He  becomes  more  and  more  frequently  and 
regularly  assisted  in  his  work  by  a  number  of  persons 
permanently  connecting  themselves  with  his  court,  and 
making  it  the  special  and  continuous  occupation  of  their 
lives  punctiliously  to  record  the  ceremonial  and  decrees  of 
the  court.  The  attendant  populace  become  more  and 
more  familiar  with  the  regular  occurrence  of  antiquated 
forms,  and  proportionately  attached  to  them.  The 
slightest  variation  from  them  produces  first  astonishment, 
then  pain,  and  lastly  revolt.  The  purpose  of  law  itself, 
as  a  subordinate  instrument  of  human  well-being,  is  lost 
sight  of,  or,  if  ever  noticed,  is  rapidly  forgotten.  The 
preservation  of  the  old  and  the  repetition  of  the  familiar 


THE   LEGISLATOR  AND   THE   JUDGE,  53 

become  the  sole  considerations  which  operate  on  the 
minds  of  judges,  of  the  attendant  ministers  of  the  courts, 
of  suitors,  and  of  spectators. 

It  is  necessary  thorovighly  to  allow  for,  and  to  under- 
stand, these  persistent  tendencies  to  conservatism  in 
early,  and  indeed  in  all,  procedure,  in  order  to  comprehend 
certain  peculiar  directions  in  which  law  manifests  its 
growth.  If  the  c&mmunity  progress,  the  law  must  needs 
expand  and  become  a  more  and  more  exact  expression  of 
the  moral  sensibilities  and  economical  habits  of  the 
people. 

This  expansion  can  only  be  effected  in  two  ways 
— that  of  direct  legislation,  proceeding  from  the  supreme 
political  authority,  and  that  of  indirect  legislation,  pro- 
ceeding from  the  judges  who  are  called  upon  to  execute 
the  law.  As  to  the  former  way,  that  of  direct  legisla- 
tion, the  meaning  and  method  of  it  are  sufficiently 
understood  in  the  present  day,  when  it  is  the  main  and, 
apparently,  the  most  natural  method  of  introducing 
changes  of  the  law.  But  the  laro-e  mass  of  the  law  of 
every  civilized  country  has  been  developed  in  the  process 
of  executing  law,  though  a  variety  of  different  methods 
have  been  consciously  or  unconsciously  employed  for  this 
purpose. 

It  may  be  noticed,  at  the  outset,  that  the  supreme 
legislator  and  the  judge  are,  from  the  nature  of  the 
case,  very  differently  situated  in  respect  of  the  con- 
templation of  any  new  or  old  law.  The  legislator  must 
needs  put  the  general  tendency  and  consequences  of  a 
law  in  a  higher  rank  of  importance  than  its  occasional 
operation.  If,  on  the  whole,  the  law  seems  likely  to  pro- 
mote a  balance  of  good  over  evil,  for  him  the  law  is  a 
good  one  and  should  be  retained  or  introduced. 

The  judge,  on  the  other  hand,  having  a  vast  number 
of  laws  to  execute,  some    of    them    only    on   very   few 


54  THE   LEGISLATOR  AND  THE  JUDGE. 

occasions,  is  more  arrested  by  the  special  operation  of 
a  law  in  the  paiticular  instances  which  come  before 
him,  than  by  the  general  consequences  of  the  law  which 
he  is  less  bound  to  think  about.  The  special  operation 
of  a  law  he  can  inspect  with  a  distinctness  which  no 
legislator,  contemplating  the  circumstances  of  men's 
personal  history  and  the  accidents  of  human  life  only  at 
a  distance,  can  rival. 

Nor  is  it  alone  the  true  bearing  and  effect  of  a  law  that 
can  be  better  appreciated  by  him  who  executes  than  by 
him  who  makes,  but  a  truer  apprehension  of  the  detailed 
wants  of  society  and  of  the  character  of  men  and  women, 
as  affected  by  the  general  operation  of  laws,  is  likely  to 
be  acquired  by  the  judge,  who  is  ever  in  contact  with 
society  in  its  most  concrete  shape,  than  by  the  legislator, 
who  only  looks  upon  mankind  in  masses. 

It  is,  of  course,  true  that  individual  judges  may  happen 
to  share  in  many  of  the  characteristic  qualities  of  the 
large-minded  statesman,  and  the  statesman  may  have  a 
special  faculty  for  correctly  estimating  the  more  minute 
conditions  of  human  life.  But  these  accidental  divergen- 
cies will  not  affect  the  general  result.  Generally  speaking, 
the  tendency  of  the  judge  will  be  to  understand  law,  and 
to  explain  it,  in  a  sense  the  most  adapted  to  the  actual 
condition  and  work  of  mankind.  This  function  is  of 
supreme  importance  at  a  period  when  the  legislature  has 
not  yet  been  raised  into  conscious  activity;  but  it  con- 
tinues to  be  (as  has  already  been  shown)  of  no  small 
importance,  even  when  the  legislature  is  constantly  on 
the  alert,  and  is  incessantly  engaged  in  composing  fresh 
laws.  In  the  earlier  period,  indeed,  the  judge  is  the  sole 
law-making  authority.  In  the  latter  period,  his  law- 
making function  is  of  very  considerable  importance, 
however  much  it  may  be  described  under  the  name  of 
mere  "interpretation." 


LEGAL   FICTIOXS.  55 

Assuming,  then,  that  there  is  a  natural  proclivity  in 
every  rule  of  law  to  undergo  a  minute  deviation  in  the 
course  of  its  application — the  deviation  becoming  after- 
wards a  qualification  in  the  form  of  the  rule  itself, — it 
remains  to  examine  and  enumerate  some  of  the  most 
celebrated  methods  by  which  this  deviation  is  brought 
about. 

It  has  already  been  seen  that,  inasmuch  as  judges  are 
likely  to  exceed  in  intelligence  the  bulk  of  the  com- 
munity, in  every  court  of  justice  there  will  be  two 
rival  forces  at  work,  tending  respectively  to  the  con- 
servation and  to  the  modification  of  existing  rules  of 
law.  The  practice  of  legal  fictions,  by  which  the  ima- 
ginative reverence  for  old  symbols  and  formalities 
is  deferred  to  while  more  or  less  perceptible  change  is 
introduced  into  the  substance  of  the  law,  is  now 
thorouglily  understood,  and  has  been  fully  commented 
upon.  Sometimes,  by  the  medium  of  a  fiction,  the 
legislature  itself  is  imposed  upon,  and  is  lulled  into 
acquiescence  with  a  policy  which,  when  distinctly  pre- 
sented to  it,  it  would  disown,  or  has  actually  disowned. 
Generally,  however,  the  legislature  is  assumed  to  be  in- 
different, and  it  is  rather  the  populace,  or  such  parts  of 
the  more  educated  populace  as  bestow,  attention  upon 
legal  proceedings,  that  are  the  object  of  the  snare.  More 
frequently,  the  judges  and  all  the  ministers  of  the  court 
who  co-operate  with  them  deceive  themselves  by  tricks 
practised  upon  their  own  understandings.  The  value  of 
the  new  rule  seems  so  obvious,  and  yet  the  difficulties  of 
introducing  it  by  a  bold  step  of  conscious  legislation  so 
insuperable,  that  the  self-deception  I'eadily  wins  its  way, 
that  what  is  useful  must  be  real. 

It  is  through  a  series  of  useful  fictions  that  the 
English  Courts  of  Queen's  Bench,  Common  Pleas,  and 
Exchequer  have  gradually  encroached  on  the  previously 


56  EQUITY. 

distinct  jurisdiction  of  one  another;  that  the  strict  en- 
tailment of  property  by  which  land  might  have  been 
preserved  from  alienation  for  generations  was  judicially 
encroached  upon ;  that  a  large  branch  of  the  praetorian 
jurisdiction  at  Rome  developed  itself;  and  that  a  variety 
of  important  doctrines — some  useful,  some  pernicious — 
touching  the  prerogative  of  the  English  Crown,  have 
acquired  a  symmetrical  shape. 

The  nature  of  equity  as  a  mode  of  judicial  legislation 
has  already  been  described  in  one  of  its  aspects.  It  has 
been  described  as  being  originally  a  device  employed  by 
those  who  administer  law  by  which  to  diminish  the  un- 
just consequences  frequently  resulting  from  the  unflinch- 
ing application  of  general  rules.  But  the  purpose  of  it  as 
an  universal  method  is  larger  than  this. 

It  implies,  first,  the  progressive  recognition  of  a 
novel  class  of  rights  and  duties,  existing  side  by  side 
with  those  existing  under  the  ordinary  rules  of  law — 
new  rights  and  duties,  the  gradual  product,  under  judicial 
nurture,  of  new  social  emergencies  and  a  higher  range  of 
moral  instincts. 

Equity  implies,  secondly,  a  new  and  more  elastic 
system  of  procedure,  by  which  the  artificial  technicalities, 
the  tedious  ceremonies,  and  the  precise  verbiage  familiar 
to  an  older  age  are  summarily  got  rid  of.  This  view  of 
equity  is  presented  in  its  most  distinct  form  in  England, 
where  the  different  order  of  courts  through  the  agency 
of  which  it  came  into  existonce  suggested  the  use  of  a 
machinery  borrowed  rather  from  the  refined  but  simple 
methods  of  the  canon-lawyers  than  from  the  early  bar- 
baric experiments  of  primitive  Englishmen. 

Lastly,  equity  presupposes  a  superior  habit  of  moral 
discrimination,  by  which  fraud  is  capable  of  being  fol- 
lowed through  all  its  mazes,  and  even  the  private  duties 
a})pertaining  to  some  relations  of  life  (as  the  duties  arising 


EQUITY.  57 

out  of  guardianship,  testamentary  directions,  and  private 
partnerships)  are  made  imperative  upon  those  liable  to 
them.  In  pursuit  of  like  objects,  equity  endeavours  to 
ascertain,  with  more  precision  and  attention  to  the  claims 
of  moral  justice  than  the  ordinary  law,  the  respective 
claims  of  a  variety  of  persons  in  cases  where  those 
claims,  as  it  were,  cross  and  intersect  one  another. 

In  treating  of  equity  as  a  conspicuous  mode  of  judicial 
legislation,  it  might  be  questioned  whether  the  presence 
of  it  is  a  mere  peculiarity  of  certain  very  celebrated 
systems  of  law,  or  whether,  rather,  that  presence  may  be 
properly  regarded  as  a  permanent  and  universal  fact. 
It  is  true  that  equity,  in  all  its  main  features,  has  been  a 
strikinsf  characteristic  both  of  the  Roman  and  of  the 
Eno'lish  law,  thouo-h  even  here  the  differences  it  has  ex- 
hibited  are  very  observable.  But  the  distinction  between 
equity  and  the  ordinary  law  is  not  preserved  in  any  of 
the  modern  codes  founded  on  the  Roman  law.  It  was 
gradually  disappearing  under  the  influence  of  Justinian's 
legislation  in  Roman  law  itself;  and  it  is  known  that, 
apart  from  the  direct  influence  of  the  Judicature  Act 
of  1873,  a  number  of  causes — some  spontaneous,  some 
legislative — have  long  been  co-operating  in  this  country 
towards  what  is  popularly  known  as  the  "  fusion  "  of  law 
and  equity,  which  means  the  arrest  of  the  further  growth 
of  equity,  not  only  by  finally  consolidating  the  best  prin- 
ciples belonging  to  each  system,  but  by  committing  the 
administration  of  the  conjoint  system  to  one  set  of  courts 
and  judges.  When  this  is  accomplished,  it  may  be  said 
that  equity,  as  a  distinct  mode  of  judicial  legislation,  will 
no  longer  be  a  proper  subject  for  scientific  inquiry. 

But  it  is  more  than  doubtful  whether  such  an  epoch 
can  ever  arrive.  It  would  seem  more  likely  and  more 
conformable  to  the  recorded  results  of  experience  that  the 
alternative  appearances  of  law  and  of  equity  as  the  mutual 


58  THE   GROWTH   OF   LAW. 

checks  and  corrections  of  one  another  are  lasting  and  not 
transitory  phenomena.  However  severely  and  peremp- 
torily equity,  and  all  the  arbitrary  judicial  power  implied 
in  its  exercise  at  particular  epochs,  may  be  controlled 
and  discredited,  there  is  reason  to  think  its  resurrection 
must  be  constantly  waited  for.  So  soon  as  a  system  of 
law  becomes  reduced  to  completeness  of  outward  form,  it 
has  a  natural  tendency  to  crystallize  into  a  rigidity 
unsuited  to  the  free  applications  which  the  actual  circum- 
stances of  human  life  demand.  The  invariable  reaction 
against  this  stage  is  manifested  in  a  progressive  exten- 
sion, modification,  or  complete  suspension  of  the  strict 
legal  rule  into  which  the  once  merely  equitable  principle 
has  been  gradually  contracted.  Thereupon  follows  not 
only  a  special  logical  method  for  the  creation  of  a  new 
series  of  modifying  principles  in  obedience  to  the  claims 
of  a  higher  moral  standard,  but  also  a  vast  multiplication 
of  channels  for  social  and  commercial  activity,  and  a 
general  conviction  of  the  inadequacy  of  the  existing  law. 
It  is  true  that  conscious  legislation,  proceeding  from 
the  supreme  political  authority,  as  well  as  other  modes 
of  judicial  legislation,  to  be  shortly  enumerated,  will  com- 
pete, to  an  increasing  extent,  with  the  progress  of  equity. 
But  it  is  impossible  that  the  functions  of  equity  can,  by 
any  of  those  rival  forces,  be  entirely  superseded.  Equity 
works  more  assiduously  and  consistently  than  political 
legislation,  and  is  more  delicate,  and  perhaps  more  silent 
and  obscure,  than  the  judicial  interpretation  of  written 
law  which  will  immediately  appear  to  be  its  more 
formidable  competitor.  Thus  the  history  and-  the  nature 
of  equity  may  be  properly  held  to  bo  a  permanent  topic 
in  the  exhibition  of  the  Science  of  Law. 


CHAPTER  V. 

THE    GROWTn   OF   LA.W— {Continued.) 

An"  instrument  equally  important  with  those  mentioned 
in  the  last  chapter,  by  which  law  grows  through  the  very 
process  of  executing  and  applying  it,  is  that  of  the 
inter jyretat ion  of  written  law.  The  functions  of  inter- 
pretation are  among  the  most  arduous  of  the  occupations 
of  the  judge ;  and  the  consideration  of  the  topic  is  all 
the  more  momentous,  as  it  involves  an  inquiry  into  the 
true  nature  and  differences  of  written  and  unwritten  law. 

The  grounds  for  interpretation  are  the  following  : — In 
the  case  of  all  law  directly  published,  by  the  lawgiving 
authority, — which  may  chance  to  be  some  extremely 
primitive  one,  existing  at  the  earliest  epoch  in  the 
national  life  of  the  community,  and  which  has  left  behind 
it  only  some  scattered  monuments  or  almost  illegible 
relics  of  its  will, — there  is  needed  the  intervention  of 
some  official  personage,  for  the  purpose  of  affixing  to 
words  and  sentences  of  uncertam  intent  the  actual 
meaning  which  it  was  originally  designed  that  they 
should  bear. 

The  large  mass  of  a  nation's  laws  are  made  at 
one  period,  and  are  put  into  execution  through  a  long 
series  of  following  periods.  In  the  case  of  any  large  and 
growing  State,  the  laws  are  made  in  one  part  of  it,  as  in 
the   metropolis,   and  are  put   into  execution  at   a    vast 


60  THE   GROWTH   OF   LAW. 

variety  of  places,  some  of  them  indefinitely  far  removed 
from  one  another.  Again,  laws  made  by,  or  especially  in 
view  of,  one  class  of  men,  speaking  one  language, 
actuated  by  one  set  of  interests,  and  habituated  to  one 
way  of  life,  are  put  into  execution  among  men  wdioUy 
alien,  in  all  these  respects,  to  the  particular  class  of 
persons  originally  kept  in  view.  It  is  obvious,  at  the 
same  time,  that  the  meaning  of  language  is  peculiarly 
susceptible  of  the  influence  of  all  the  vicissitudes  produced 
by  time,  geographical  distance,  climate,  occupation,  and 
general  modes  of  life. 

It  thus  comes  about  that  only  in  the  rare  and  almost 
impossible  case  of  a  legislator  condescending  to  step 
dowai  into  the  judgment-seat,  and,  as  occasion  required, 
to  interpret  his  own  laws,  can  the  integrity  of  the  mean- 
ing really  intended  by  the  legislator  in  the  use  of  the 
words  he  employed  be  infallibly  preserved. 

These  observations  presuppose  that  (at  least)  the 
legislator  is  a  man  of  a  single  mind,  and  really  had  a 
distinct  and  single  meaning.  In  the  case  of  modern 
popular  legislation,  proceeding,  as  it  does,  through  the 
medium  of  prolonged  debate  and  of  innumerable  compro- 
mises and  amendments  on  the  original  proposition,  it 
must  be  doubtful  from  the  very  first  whether  the  laAv 
passed  could  be  said  to  contain  in  itself  any  one  and  self- 
consistent  meaning  at  all. 

The  problem,  then,  before  the  judge,  may  happen  to 
be  of  a  nature  very  difficult  to  solve.  He  has  before 
him  a  given  condition  of  facts,  and  he  has  a  law  c[uoted 
before  him  as  applicable  to  that  state  of  facts,  and  as 
determining  the  rights,  duties,  and  liabilities  of  certain 
persons  concerned.  It  may  be  that,  through  the  vicissi- 
tudes and  modifications  of  language  above  adverted  to, 
either  (1)  the  original  language  of  the  law  has  now 
contracted  a  variety  of  supplementary  meanings,  which 


GROUND   AND   MODES   OF   INTERPRETATION.  01 

render  it  doubtful  which  of  the  meanings  the  legislator 
intended  at  the  time  of  composing  the  law ;  or  (2),  the 
original  language  of  the  law  may  have  now  lost  some  of 
its  ancient  shades  of  meaning,  and  it  may  be  doubtful 
whether  the  only  surviving  meaning  ought  to  limit  the 
present  application  of  the  law. 

In  either  of  these  cases  the  judge  must  have  laid 
down  for  him  by  law  a  definite  jjrinciple  of  interpretation 
for  his  guidance.  He  may  be  directed,  for  instance,  to 
institute  a  historical  and  philological  inquiry  as  to  the 
exact  changes  which  the  expressions  of  the  law  have 
undergone  in  popular  use  since  its  enactment,  and,  in 
accordance  with  the  result  of  this  investigation,  to  revert 
to  the  true  meaning  of  the  terms  intended  by  the  legis- 
lator to  be  conveyed  by  them.  Or  he  may  be  directed 
to  consider  the  probable  modification  in  his  expressions 
Avhich  the  legislator  would  have  made  had  he  been 
living  at  the  present  day,  and  had  he  shared  in  all  the 
social  conditions  by  which  the  judge  himself  is  sur- 
rounded. Or  the  judge  may  be  directed  to  consult  the 
existing  supreme  political  authority  of  the  day  in  every 
case  of  difficulty,  and,  as  it  were,  draw  fresh  inspira- 
tion, as  needed,  from  the  ever-living  authors  of  all 
legislation.  This  last  device,  indeed,  is  adopted  in  the 
English  Statute  of  Treasons  of  the  twenty-fifth  year  of 
Edward  III.,  and  also  in  the  North  German  Landrecht, 
according  to  which  latter  {Introductory  Section  47),  "  If 
"  the  judge  considers  the  meaning  of  a  law  to  be  doubtful, 
"  he  must,  without  naming  the  parties,  lay  his  doubts 
"  before  the  Legislative  Commission."  Frederick  II.  like- 
wise, in  his  code,  the  predecessor  of  the  Landrecht,  for- 
bade all  interpretation,  and,  in  the  case  of  laws  proving 
insufficient  or  ambiguous,  provided  for  direct  recourse 
beino-  had  to  the  legislature. 

The   last    possible    mode    of  meeting  the    difficulty 


(32  THE   GROWTH   OF"   LAW. 

resulting  from  a  change  or  -uncertainty  in  language  is 
to  leave  the  judge  to  decide  for  himself  in  view  of  all  the 
exigencies  of  the  case.  This  discretionary  power,  when 
so  left  to  the  judge,  may  be  used  in  a  variety  of  ways. 

He  may  either  decide  simply  in  view  of  the  im- 
mediate suggestions  of  practical  justice  and  convenience 
as  presented  by  the  actual  situation  of  the  parties  before 
him.  Inasmuch  as  these  suggestions  may  lead  him,  in 
the  next  case  which  comes  before  him,  to  an  entirely 
different  conclusion,  and  to  laying  down  a  veiy  different 
rule  of  law,  it  is  obvious  that  to  admit  any  test  of  this 
vague  sort  can  only  tend  to  a  reign  of  arbitrary  caprice, 
and,  in  fact,  to  general  anarchy;  for  complete  uncer- 
tainty in  law  differs  little  from  the  absence  of  all  law. 

Or,  again,  the  judge  may  use  his  discretionary  power 
in  making  the  meaning  of  the  law  under  discussion  con- 
form as  far  as  possible  to  the  analogy  suggested  by  all 
those  other  parts  of  the  law  the  meaning  of  which  is  indis- 
putable. For  this  purpose  he  will  have,  on  each  occasion 
of  deciding  on  a  doubtful  statute,  to  consult  all  such  parts 
of  the  general  law,  written  and  unwritten,  as  seem  likely, 
from  the  analogous  character  of  the  relations  and  transac- 
tions which  they  control,  to  have  any  bearing  on  the  case 
in  hand.  For  the  same  purpose  current  logical  methods, 
moral  assumptions,  and  legal  maxims  or  modes  of  concep- 
tion will  all  be  resorted  to  in  order  to  guide  the  judge 
in  the  elaboration  of  the  rule  for  which  the  written  lan- 
guage only  affords  imperfect  hints. 

It  is  not  too  much  to  assert  that  it  is  throuo-h  this 
process,  as  directed  and  perfected  by  a  highl}^  organized 
legal  profession,  that  the  largest  quantity  of  the  law  of 
Eno'land  and  of  all  the  civilized  States  in  the  world  has 
been  developed. 

It  is  known  that  the  earlier  Roman  law  grew  up 
mamly  through  judicial    commentaries   on   the  text   of 


FKENX'H   MEANING   OF   "  JURISPEUDENCE."  63 

the  XII.  Tables,  those  commentaries  being  concocted, 
not  by  the  license  of  individual  judges,  but  by  the 
harmonizing  spirit  and  tone  of  a  long  line  of  judicial 
magistrates,  supported  by  the  sympathetic  co-operation 
of  a  constantly  growing  class  of  legal  practitioners. 

In  England,  the  history  of  the  common  law  is  familiar 
to  all.  The  earlier  judges,  to  whom  its  development  is  due, 
sometimes  spoke  as  though  they  were  merely  applying 
the  rules  of  a  lost  written  code,  sometimes  as  though 
applying  to  practice  a  body  of  traditional  maxims  which 
had  been  handed  do^vn  from  one  generation  of  judges 
to  another.  But  in  all  cases  their  innovations  on  the 
imaginary  code  or  maxims,  or  their  interpretations  of 
statutes,  were  guided  not  by  individual  discretion,  but  by 
rigid  conformity  to  a  logical  method  and  to  a  legal 
instinct  which  had  been  formed  and  devised  in  the 
closely  organized  profession  of  the  law.  The  same  pro- 
position is  equally  true  of  Continental  countries,  where 
"jurisprudence,"  or  the  study  of"  interpretative  logic,"  as 
created  by  judges,  plays  so  important  a  part  in  the 
practical  application  of  the  modern  codes. 

The  true  meaning  for  a  French  ear  of  the  term  juris- 
prudence cannot  better  be  given  than  in  the  words  of 
M.  Portalis,  in  his  "Preliminary  Discourse,"  on  the  original 
"  ijrojet  "  of  the  civil  code ;  and  those  words  so  precisely 
express  the  method  of  interpretation  which  is  being- 
described,  and  which  is  here  alleged  to  have  been,  within 
larger  or  smaller  limits,  the  most  potent  and  beneficial 
instrument  of  legislation,  that  they  are  specially  ap- 
plicable in  this  place.  M.  Portalis  writes,  "  In  the 
"  infinite  diversity  of  subjects  which  fall  under  the  control 
"  of  the  civil  law,  and  upon  which  a  judgment  in  most 
"  cases  consists  less  in  the  application  of  a  precise  text 
"  than  in  a  combination  of  several  texts,  which  lead  to  a 
"  decision  rather  than  contain  it,  jurisprudence  is  as  in- 


Gh  THE   GllOWTH   OF  LAW. 

"  dispensable  as  law.  It  is  to  jurisprudence,  then,  tliat  the 
"  legislator  must  abandon  those  rare  and  extraordinary 
"  cases  which  cannot  enter  into  the  scheme  of  a  rational 
"  legislation — the  variable,  unaccountable  details  which 
"  ought  never  to  occupy  the  attention  of  the  legislator 
"  — and  all  those  objects  which  it  would  be  in  vain  to 
"  attempt  to  foresee,  and  dangerous  prematurely  to  avoid. 
"  Experience  alone  can  fill  up  the  void  spaces  which  we 
"  must  leave." 

The  breadth  which  M.  Portalis  accords  to  the  dis- 
cretionary power  of  the  judge  is  gi-eater  than  is  needed 
for  the  purpose  now  being  considered,  which  is  merely 
the  determination  of  the  meaning  of  an  obscure  or  am- 
biguous  statute. 

With  respect  to  a  selection  between  the  main 
resources  just  indicated,  and  especially  between  that 
of  deferring  to  and  laboriously  exploring  the  true  intent 
of  the  legislator,  and  that  of  leaving  all  doubtful  cases 
to  be  settled  by  the  judge  according  to  such  methods  as 
his  judicial  instinct  accustoms  him  to  employ,  a  differ- 
ence will  probably  be  established  between  the  case  of  a 
more  recent  and  a  more  ancient  statute.  In  proportion 
to  the  antiquity  of  the  statute,  the  actual  intent  of  the 
legislator  becomes  at  once  more  undecipherable  and  likely 
to  be  more  repugnant  to  the  policy  of  modern  times. 
In  proportion  to  the  recency  of  a  statute,  the  will  of  the 
legislature,  if  it  be  expressed  at  all,  is  more  easy  to  gather 
from  a  vast  variety  of  indicia ;  and  a  judicial  superseding 
of  it  must  seem  to  approach  more  nearly  to  an  act  of 
mere  executive  insubordination. 

In  all  the  above  cases,  however,  a  distinction  has  to 
be  drawn  between  conscious  or  intentional,  and  uncon- 
scious or  reluctant,  legislation  on  the  part  of  a  judge. 
A  judge  consciously  legislates  when,  eitlier  having  no 
doubt   about  the   meaning   of    the   legislator,   or   being 


ILLUSTRATIONS   AND   INTERPRETATION   CLAUSES.       G5 

quite  satisfied  that  there  never  was  a  meaning — that 
is,  that  no  legislation  took  place — he  is  led  to  enunci- 
ate a  new  rule  of  law  on  the  subject,  professing  at  the 
same  time  that  he  is  merely  declaring  the  will  of  the 
legislator.  The  judge  may  do  this  with  all  honesty,  and, 
indeed,  with  the  benevolent  view  of  preventing  casual 
injustice  or  the  success  of  malice  and  fraud.  But,  again, 
he  may  also  do  this  in  pursuit  of  some  unworthy  aim,  as 
the  support  of  class  interests  or  the  furtherance  of  the 
prerogative  of  the  Crown.  Conscious  legislation  of  this 
sort  is  in  the  highest  degree  dangerous,  and  may  easily 
become  the  source  of  the  gravest  corruptions. 

There  are,  however,  certain  methods  of  unconscious 
legislation,  tlu'ough  which  a  change  is  involuntarily  made 
in  the  substance  of  the  law  while  a  genuine  attempt  is 
being  made  only  to  ascertain  and  apply  it,  which  operate 
in  other  ways  than  through  interpretation,  properly  so 
called.  A  description  of  some  of  these  methods  must 
shortly  be  proceeded  with. 

In  the  mean  time  it  is  necessary  to  allude  to  certain 
devices  employed  in  modern  statutes  and  codes  for 
the  purpose  of  avoiding  the  necessity  for  undisciplined 
interpretation.  Such  devices  are  "  Definitions,"  "  Inter- 
pretation Clauses,"  and  "  Illustrations."  The  purpose  of 
all  of  these  is  to  secure  that  words  and  sentences, 
having  been  used  in  one  sense  by  the  legislator,  be 
strictly  confined  to  that  sense,  and  be  rescued,  as  it  were, 
from  the  perils  of  vacillation  and  uncertainty  to  which 
all  language  is  naturally  exposed.  In  English  Acts  of 
Parliament  a  somewhat  reckless  use  is  made  of  the  "inter- 
pretation clauses,"  by  which,  instead  of  a  word  or  a 
sentence  being  simply  guarded  against  misapprehensions 
or  abuse,  the  word  or  sentence  is  made  to  cover  a  number 
of  artificial  meanings  which,  in  the  absence  of  the  clause, 
no  interpreter  would  ever  think  of  attaching  to  them. 


GO  THE  GROWTH   OF   LAW. 

A  good  specimen  of  the  wdse  use  of  "  Definitions  "  is 
afforded  by  the  XVIth  Title  of  the  50th  book  of  the 
Digest,  headed  "De  Verborum  Sigxificatioxe,"  in 
which  a  vast  number  of  commonly  recurrent  terms  and 
expressions  have  their  rigid  meaning  defined  and 
guarded.  Another  specimen  of  useful  definition  is  pre- 
sented by  the  new  Anglo-Indian  Consolidated  Statutes 
or  Codes,  in  which  the  simplest  English  is  used,  and  aU 
terms  at  all  liable  to  perversion  or  abuse  are  severely 
circumscribed. 

It  is  these  last-mentioned  bodies  of  law  which  also 
exhibit  the  happiest  use  of  the  method  of  taking  pre- 
cautions against  misapprehension,  by  the  use  of  "  illus- 
trative cases."  These  cases  must  be  simple  in  structure, 
and  neither  too  few  nor  too  numerous ;  or  else,  instead 
of  merely  protecting  the  language  against  degeneration 
or  erratic  abuses,  they  will  serve,  like  "  leading  cases,"  to 
restrict  on  all  sides  the  import  of  the  rule, 

WTiat  has  been  hitherto  said  about  interpretation 
applies  especially,  though  not  exclusively,  to  written  law. 
It  has  been  seen,  however,  that  wherever  a  rule  of  law 
exists,  whether  it  be  Avritten  or  unwritten,  there  is 
always  a  certainty  of  its  undergoing  modification  in  the 
course  of  its  being  applied  in  practice.  The  cu-cumstances 
of  the  case  which  calls  for  its  application  are  so  frequently 
different  from  those  which  the  obvious  purport  of  the 
law  comprehends,  and  yet  those  circumstances  are  near 
enough  to  those  comprehended  by  the  rule  to  suggest  a 
modification  of  the  rule  in  order  to  enclose  them. 

In  written  law  this  modification  is  effected  by  inter- 
jjvetation  strictly  so  called,  Avhether  the  legislation  really 
involved  by  it  be  conscious  or  unconscious.  The  wiitten 
language  is  either  made  to  cover  a  larger  meaning  or  a 
narrower  meaning  than  that  impressed  upon  it  by  the 
legislator.     In  the  one  case  the  interpretation  is  said  to 


MODES   OF   JUDICIAL   LEGISLATION.  G7 

be  extensive,  in  tlie  otlier  Testrictlve.  Tlie  process  of 
investigating  tlie  intention  and  will  of  the  legislator 
must  always  .  commence  in  the  first  instance  with  an 
inquiry  into  the  words  he  has  used,  and  the  meaning 
he  intended  them  to  bear.  It  is  only  when  the  words 
are  ambiguous,  and  the  meaning  therefore  uncertain, 
or  when  it  is  held  undesirable,  for  some  reason  or 
other,  to  put  the  undoubted  meaning  upon  the  word, 
that  other  clues  to  the  probable  policy  of  the  legislator 
can  be  made  available.  These  may  be  supplied,  in 
the  way  above  described,  by  the  general  context  as 
gathered  from  the  language  of  neighbouring  laws,  or  by 
a  regard  for  the  whole  political  situation  at  the  time  of 
legislation. 

Interpretation  resting  upon  a  mere  study  of  the 
words  used  in  framing  a  law  has  been  called  gram- 
matical interpretation,  and  that  resting  upon  any  other 
method,  logical.  These  expressions  are  not  very  happily 
chosen,  as  grammar  is  only  a  part  of  logic,  and  the  one 
cannot  possibly  be  opposed  to  the  other. 

Apart,  however,  from  any  attempt,  conscious  or  un- 
conscious, to  modify  the  character  of  written  law  by 
extensive  or  restrictive  interpretation,  written  and 
unwritten  law  are  both  liable  to  decisive  alteration  at  the 
hands  of  judges  in  a  variety  of  ways.  Such  ways  are 
(1),  the  gradual  recognition  and  adoption  of  customs  ;  (2), 
the  incorporation  of  foreign  law;  (3),  deference  to  the 
formulated  opinions  of  text-book  writers  and  commenta- 
tors ;  (-i),  the  framing  of  rules  of  procedure ;  (5),  direct 
legislation  under  the  cloak  of  conforming  to  a  so-called 
"  Law  of  Nature,"  "  Natural  Reason,"  "  Natural  Justice," 
"  Common  Sense,"  or  "  General  Utility." 

(1.)  The  original  process,  by  which  the  spontaneous 
usages  of  the  people  became  transmuted  into  true  laws,  is 
constantly  being  repeated  throughout  the  whole  history 


G8  JUDICIAL   ADOPTION    OF   CUSTOMS. 

of  a  conimimity,  though,  naturally,  with  greater  facility 
and  rapidity  during  the  period  in  which  a  large  mass  of 
the  law  continues  unwritten.  The  process, .  in  the  case  of 
each  custom  so  transmuted  into  law,  commences  with  a 
cautious  admission,  within  clearly-defined  limits,  of  the 
custom  as  a  rule  binding  on  the  parties  who  may  be  sup- 
posed to  have  contemplated  its  existence  in  their  trans- 
actions with  one  another. 

When  a  custom  is  found  to  exist,  not  among  a  very 
small  group  of  men,  but  among  all  men  engaged  in 
certain  occupations,  and  to  be  constantly  obs'erved  in 
their  common  transactions ;  and  if,  furthermore,  the 
custom  be  ancient,  certain,  and  not  counter  to  the 
general  political  and  social  welfare  of  the  community, 
the  admission  of  it  as  qualifying  the  ordinary  legal 
rule  becomes  a  fixed  practice  in  courts  of  law.  This 
admission  in  time  acts  back  again  on  the  rule,  and  gives 
it  definiteness  and  solidity.  In  this  way  the  custom 
becomes  eventually  binding  on  all  men,  and,  in  fact, 
indistinguishable  from  law  itself.  A  very  large  part 
of  the  law  of  all  countries  is  made  in  this  way,  and  espe- 
cially in  matters  relating  to  commerce.  In  England,  the 
whole  law  of  bills  of  exchange  and  promissory  notes  ex- 
hibits the  completion  of  the  absorbing  process,  and  the 
general  admission  of  the  customs  prevalent  in  the  Stock 
Exchange  and  in  agricultural  tenures  exhibits  the  earlier 
stages  of  it. 

(2.)  The  incorporation  of  foreign  law  is  another 
method  through  which  law  grows.  The  amount  of  this 
incorporation  must  depend  on  a  variety  of  circumstances, 
and  is  likely  to  be  less  than  elsewhere  in  an  insular 
country  like  England,  the  laws  of  which  reached  a 
considerable  degree  of  development  before  relations 
with  foreign  countries  in  times  of  peace  became  con- 
spicuously active.      The  process  is  likely  to  be  hastened 


INFLUENCE   OF   FOEEIGN   LAW.  G9 

by  foreign  conquest,  or  even  by  the  introduction  of  large 
foreign  populations,  whose  peculiar  customs  cannot  fail  to 
affect  the  administration  of  law.  The  prevalence  of  the 
Canon  law  throughout  Europe  (owing  to  the  Eccle- 
siastical system,  which,  at  one  time  or  another,  has  domi- 
nated in  all  countries),  and  the  language  of  International 
law  (founded  to  so  great  an  extent  on  that  of  the  Roman 
law,  and  in  use  in  the  Admiralty  and  Prize  courts  of  all 
countries),  have  together  combined  to  infuse  a  very  large 
tincture  of  what  may  be  called  foreign  law  into  the 
systems  even  of  the  countries  which,  like  England,  have 
most  obstinately  resisted  all  external  influences.  More 
recently,  however,  the  universal  diffiision  of  codes 
founded  on  the  type  of  the  Code  Napoleon,  and  the  closer 
intercourse,  both  for  social  and  for  commercial  purposes, 
of  all  the  States  of  Europe,  have  been  tending  to  make 
the  foreign  element  in  all  European  systems  of  law  very 
considerable,  so  far  as  this  element  can  be  incorporated 
independently  of  express  legislation. 

(3.)  A  third,  important,  though  silent  and  often 
ignored,  mode  of  replenishing  a  legal  system  through 
judicial  action  alone,  is  the  adoption  of  the  opinions 
of  eminent  text-book  writers  and  commentators.  In 
the  countries  of  the  Continent  where  codes  have  been 
constructed,  the  works  of  text-book  writers  of  repute,  in 
commenting  on  the  language  of  the  codes,  become 
scarcely  less  authoritative  on  the  state  of  the  law  than 
the  language  of  the  codes  themselves.  In  England  this 
influence  has  been  felt  to  a  considerable  extent,  but 
mainly  under  very  different  classes  of  circumstances; 
such,  for  instance,  as  where  the  text-book  writers  are  of 
considerable  antiquity,  so  that  the  constant  authority 
they  have  had  seems  to  have  gathered  strength  with 
every  fresh  race  of  judges  who  have  been  loyal  to  their 
sovereignty.     The  influence  of  such  writers  as  Bracton, 


70   TEXT-EOOK  WRITERS  AND  CUSTOMS  OF  CONVEYANCERS. 

Fortescue,  and  Coke  may  be  explained  as  easily  by 
reference  to  the  uncertain  and  almost  mystical  sources  to 
wliicli  the  old  common  law  was  referred,  as  to  the  essen- 
tial worth  of  those  writers  themselves. 

The  early  beginnings,  however,  of  the  English  common 
law  were  shrouded  in  such  a  mist  of  obscurity,  and  so  many 
fictitious  expressions  had  to  be  resorted  to,  to  give  it  any 
substance  or  reality  at  all,  that  the  writings  of  great 
judges,  on  the  wdiole  or  on  parts  of  the  early  law,  could 
not  but  be  welcomed  as  light  shining  in  a  very  dark 
place.  In  later  times  a  certain  special  deference  has  been 
accorded,  in  the  law  regulating  land,  to  the  custom  or 
opinion  of  eminent  conveyancers.  The  reason  of  this  is 
that  the  mysteries  attending  the  conveyance  of  land,  the 
formal  expressions  essential  to  an  effective  deed  for  the 
purpose,  and  the  rarity  and  close  mutual  connection  of 
the  men  who  devoted  themselves  to  this  branch  of  the 
art  of  law,  all  conspired  to  make  conveyancers  in  some 
measure  sharers  with  the  judges  in  evoking  the  law 
relating  to  the  peculiar  branch  of  matters  with  which 
they  had  to  deal. 

(4.)  The  task  of  framing  the  rules  of  procedure  is  a 
task  naturally  and  properly  left  by  the  legislator,  within 
certain  limits,  to  the  judges  who  have  to  administer  the 
law.  It  has  already  been  seen  that  laws  of  procedure 
form  the  most  ancient  portion  of  every  system  of  law, 
and  it  is  only  by  slow  and  tentative  efforts  that  material 
changes  can  be  superinduced  upon  that  part  of  the 
mechanism  of  the  State  which  operates  most  immediately 
in  the  presence  of  the  people,  and  to  which  they  are, 
accordingly,  the  most  tenaciously  attached. 

Nevertheless,  occasions  do  arise,  though  almost  unper- 
ceived  by  spectators,  for  the  gradual  introduction  of  new 
rules  of  procedure.  The  omission,  at  first  accidental,  of  an 
accustomed  formality,  becomes  habitual,  and  the  judges 


FRAMING  RULES  OF  PROCEDURE.  71 

no  longer  insist  on  the  observance  of  it.  What  is  at  first 
an  irregular  variation  from  established  usage,  commend- 
ing itself  by  its  superior  convenience,  gradually  becomes 
sanctioned  as  the  only  rule. 

In  this  way  the  whole  law  regulating  the  conduct 
of  trials,  both  criminal  and  civil,  has  in  England  been 
fashioned  with  the  smallest  possible  help  from  legis- 
lation. A  law  of  evidence,  of  the  utmost  degree  of 
refinement,  had  been  fully  developed ;  the  rules  for  the 
examination  and  cross-examination  of  witnesses  had 
been  reduced  to  a  system  of  extreme  precision ;  and  the 
formalities  to  be  observed  before  the  trial  by  the  parties 
to  an  action,  for  the  purpose  of  ascertaining  the  true 
question  to  be  brought  before  the  court,  had  been  so 
laboriously  and  so  technically  wrought  out  into  a  cum- 
brous method  called  "pleading,"  that  only  the  pruning 
hand  of  the  legislature  was  wanted  to  introduce  a  simple 
substitute  adequate  to  the  wants  of  modern  times. 

When  any  new  jurisdiction  is  founded,  or  new  court 
of  justice  instituted,  or  even  when  any  decisive  amend- 
ment of  the  constitution  of  any  existing  court  is  pro- 
ceeded with,  it  is  customary  to  leave  the  framing  of  rules 
of  procedure,  so  far  as  they  are  not  framed  by  anticipa- 
tion b}^  the  legislature,  to  the  general  body  of  the  judges 
who  are  most  concerned  with  the  administrative  change. 

It  is  to  be  observed  that  this  function  of  framing  rules 
of  procedure  is  not,  as  it  might  appear,  a  merely  formal 
and  technical  matter,  having  no  important  bearing  on  the 
substance  of  the  law. 

When  the  nature  of  the  rights  and  duties  arising  from 
the  law  has  been  explained,  it  will  be  seen  that  they 
depend  for  their  value  and  import  upon  the  facility  with 
which  they  can  be  made  effectual  in  a  court  of  justice. 
Thus  to  facilitate  procedure,  in  respect  to  any  class 
of  laws,  is  to   give  increased  value   to   the  rights   and 


72  THE  GROWTH   OF   LAW. 

duties  arising  under  that  class.  To  complicate  or 
embarrass  procedure  is  to  impair  the  validity  of  those 
rights  and  duties. 

In  this  way  the  framing  of  rules  of  procedure  becomes 
not  the  least  important  mode  by  which  judges,  in  the 
very  process  of  executing  law^  contribute  to  its  substan- 
tive change  or  growth. 

(5.)  The  last  mode  which  it  is  worth  while  here  to 
recount,  by  which  judges  supplement  or  modify  a,  legal 
system,  is  by  affecting  to  apply  legal  rules  not  made 
by  the  legislature  and  not  alleged  to  be  handed  down 
from-  some  traditionary  authority  in  the  past,  but  based 
upon  certain  large  ethical,  or  so-called  iitilitarian,  prin- 
ciples which,  it  must  be  thereby  held,  are  presumptively 
part  and  parcel  of  the  national  law.  Such  principles  are 
alluded  to  in  such  expressions  as  "  Natural  Law," 
"  Natural  Justice,"  "  Natural  Reason,"  "  Common  Sense," 
"  General  Utility,"  and  the  like. 

That  some  universal  ethical  postulates  are  made  in 
every  system  of  law,  and  seem  to  be  presupposed  in 
the  process  of  executing  it,  is  not  capable  of  being 
denied.  But  when  once  licence  is  given  to  judges  to 
use  these  phrases  when  they  choose,  and  to  act  upon 
them,  the  obvious  consequence  must  be  that  the  judge's 
interpretation  of  these  expressions  becomes  the  ready 
substitute  for  a  rule  of  law.  The  "  Law  of  Nature " 
may  or  may  not  be  existent.  In  any  way  the  judge's 
interpretation  of  that  law  may  signally  diverge  from  that 
of  the  legislator,  and  one  judge's  view  may  be  wholly 
irreconcilable  with  that  of  another. 

All  these  expressions  have,  indeed,  very  considerable 
significance,  inasmuch  as  the  terms  of  every  law,  whether 
written  or  unwritten,  really  connote,  besides  the  ideas 
actually  denoted  by  them,  a  number  of  ideas  present  to 
the  mind  of  the  legislator,  and  which  need  to  be  repro- 


A  "LAW   OF   NATURE."  73 

duced  by  the  judge.  Such  ideas  are  sometimes  formu- 
lated into  very  large  and  imposing  proportions,  called 
"  legal  maxims,"  which  are  said  to  underlie  all  parts  of  a 
legal  system.  They  are  constituent  portions  of  every 
particular  law,  though  their  generality,  and  perhaps 
vagueness,  need  in  turn  an  amount  of  judicial  circum- 
scription which  is  constantly  narrowing  their  original 
purport. 

But  a  vast  number  of  ideas,  presumably  present  to 
the  mind  of  a  legislator,  and  needing  to  be  reproduced 
by  the  judge,  are  never  formulated  at  all.  To  this  class 
of  ideas  belongs  the  conception  that  the  general  aim  of 
every  law  is  to  perfect  the  social  constitution  of  man- 
kind ;  and  that,  therefore,  every  operation  of  a  law  which 
seems  to  violate  this  constitution  casts  discredit  upon  the 
interpretation  to  which  that  operation  is  due. 

The  notion  of  a  social  constitution  for  mankind  clothes 
itself  in  a  variety  of  dresses,  according  as  a  prevalent 
philosophical  or  theological  theory  looks  upon  man 
either  as  spontaneously  evolving  a  destiny  for  himself 
through  the  action  of  native  and  essential  forces ; 
or,  as  consciously  reflecting  upon  and  turning  to  account 
the  tardy  products  of  recorded  observation  and  ex- 
perience; or  else,  in  the  exercise  of  all  the  faculties  which 
he  finds  himself  to  possess,  as  obediently  submitting 
his  impulses  to  the  guidance  of  a  Supreme  Being  who 
ever  co-operates  with  the  physical  and  moral  nature  of 
the  creature  He  has  formed,  in  pursuit  of  its  true  and 
only  possible  course  of  development.  Whichever  theory 
prevails,  either  in  the  world  of  thought  or  in  the  popular 
dialect,  the  language  of  the  courts  of  law  is  likely  to 
become  consonant  with  it.  Thus  in  some  ages  "  nature," 
"justice,"  "reason,"  will  severally  express  ideas  which  in 
other  ages  will  be  rendered  by  "  sense,"  or  even  "  utility." 
The    same    postulates,  however,  underlie    evach    of  these 


74;  THE   GROWTH   OF   LAW. 

expressions, — to  the  effect  that  law  is  an  instrument  for 
the  effecting  of  large  purposes  connected  with  the 
general  welfare  of  the  members  of  the  State,  and  that  no 
meanino'  of  a  law  can  be  the  true  one  which  conflicts 
violently  with  this  object. 

The  history  of  the  French  codes  affords  a  curious  illus- 
tration of  the  important  place  loose  maxims  of  policy, 
morality,  or  even  law,  are  apt  to  take,  even  in  the 
compilations  of  law  which  affect  to  be  most  exact  and 
exhaustive.  By  the  4th  Article  of  the  Code  Civil  it  is 
laid  down  that  "the  judge  who  shall  refuse  to  give  a 
"  decision — under  pretext  of  the  silence,  obscurity,  or 
"  insufficiency  of  the  law — can  be  sued  as  guilty  of  a 
"  denial  of  justice."  As  subsidiary  resources  for  helping 
a  judge  in  such  a  dilemma,  the  following  were  suggested 
in  the  debates  upon  the  Code,  apparently  by  Napoleon 
himself:  (1)  equite  natiirelle,  loi  natiirelle;  (2)  Roman 
law ;  (3)  ancient  customs ;  (4)  usages,  exemples,  deci- 
sions, jurisprudence ;  (5)  droit  commun ;  (6)  principes 
generaux,  niaxirnes,  doctrine,  science!' 

Some  part  of  the  criticism  of  the  Appellate  Tribunal 
of  Montpellier,  to  which,  with  the  other  Appellate 
Tribunals,  the  projet  of  the  Code  was  submitted  for 
review,  is  worth  citing,  as  pointing  out  the  peculiar, 
dano-ers  incident  to  a  heedless  use  of  leo-islative  languao-e 
not  capable  of  severe  circumscription.  "What  a  juris- 
"  prudence  !  having  nothing  better  than  an  arbitary  rule 
"  to  apply  to  the  enormous  range  of  objects  that  have  to 
"  be  brought  into  harmonious  combination  under  the  new 

"  system  of  legislation What  can  be  looked  for 

"  as  likely  to  exercise  a  steady  control  over  an  unsym- 
"  metrical  jurisprudence  which  can  only  be  constituted 
"  by  decisions  subject  to  no  appeal,  inasmuch  as,  instead 
"  of  reposing  on  the  firm  basis  of  the  law,  they  are  made 
"  to  rest  on  the  intermediate  principles  of  '  equity,'  or 


MODES   OF   STATUTORY   LEGISLATION.  75 

"  vague  '  usages,'  on  the  ideas  of  logicians,  and,  in  a  word, 
"  on  what  is  merely  arbitrary  ?  To  an  incomplete  system 
"  of  legislation  there  is  then  added  as  a  supplement  a 
"jurisprudence  full  of  defects." 

It  has  thus  been  seen  that,  while  the  growth  of  law 
takes  place  in  two  main  and  parallel  currents — the  work 
of  the  legislator  and  that  of  the  judge — yet  these  currents 
again  admit  of  a  great  deal  of  subdivision.  The  various 
modes  in  which  law  experiences  change  in  the  hands  of 
the  judge  who  executes  it  have  been  successively  com- 
mented upon. 

It  is  no  less  necessary  to  notice  that  the  conscious 
change  in  law  by  legislation  is  also  effected  in  more  ways 
than  one.  The  legislature  may  either  directly  make  its 
OAvn  laws,  or  may  only  create  a  subordinate  authority 
with  the  requisite  powers  and  capacity  of  making  laws. 
Or,  again,  the  legislative  authority  may,  as  it  were,  invite 
a  subordinate  authority  to  co-operate  with  itself,  and 
initiate  laws  for  the  ulterior  approval  either  of  the  whole 
or  of  some  of  the  departments  of  the  legislature ;  or  it 
may  construct  the  law,  but  leave  a  subordinate  authority 
to  put  it  in  force  only  Avhen  occasion  may  suggest. 
These  different  methods  are  illustrated  in  the  method  of 
legislation  pursued  in  England  for  the  government  of 
such  of  her  colonies  as  have  Parliamentary  institutions ; 
in  the  limited  self-governing  power  conceded  to  municipal 
authorities,  to  .railway  companies,  and  to  collegiate  bodies; 
and  in  the  schemes  for  the  future  constitution  and  regula- 
tion of  endowed  schools,  made  by  the  Endowed  Schools 
Commissioners  in  compliance  with  an  Act  of  Parliament, 
and  which  become  law  after  lying  for  forty  days  unop- 
posed upon  the  tables  of  both  Houses  of  Parliament. 

In  the  case  of  "  codification,"  where  the  legislature 
consciously  reconstructs  and  republishes  the  whole  of  a 
nation's  laws,  or  a  very  large  and  important  portion  of 


76  SCIENCE   OF   LAW. 

them,  there  is,  strictly  speaking,  no  difference  between 
the  character  of  the  law-making  force  and  of  that  em- 
ployed in  the  minutest  legislative  change.  Whatever 
apparent  difference  there  is  lies  in  the  subordination  of  the 
political  to  the  legal  purpose  ;  or,  in  other  words,  the 
main  object  in  view  in  making  a  code  is  to  correct  the 
anomalies  and  misgrowths  that  have  attended  the  spon- 
taneous development  of  law,  and  not  to  introduce  sub- 
stantial changes  into  the  materials  of  the  law. 

All  the  various  modes  by  which  the  growth  of  law  is 
determined  may,  in  accordance  with  the  preceding 
observations  and  conclusions,  be  arranged  as  follows : — 

Law  made  hy  Judicial  Authority. 


I 

Interpreta- 
tion of 
Written 
Law. 

Equity.               Absorption               Foreign              Text-hook            Rules  of 
and                        Law.                  Writers            Procedure. 
Consolidation                                            and 
of  CusLouiS.                                         Commen- 
tators. 

Law  made  hy  the  Legislative  Authority  immediately. 

General 
Moral 

Political 

JLULIIU. 

Direct  Legislation.                                                         Indirect  Le^isLi.ion. 

1 
By  PartipJ 

'                             1                          1 

£j  Co.lii;j;ition. 

Whole  Letnslative                  P.oit 
Authorit}-  delcgiited.           delegated. 

1                                                    1 

1                                                    1 

laws  to  be  put                                Laws  to  he 

ill  for.e  liy                                       iiiitiat«l  by 

Sii)Kirdiiiat«;                      1           6(ilitirdiitat« 

AiiUiui-ili-.                                      AuUiority. 

CHAPTER   VI. 

ELEMENTARY     COXCEPTIONS     AND    TERMS. 

Person  and  Thinrj. — Bight  and  Duty. — Act  and  Event. — Will,  Intention, 
"  Negligence,  Fraud,  Malice. — Imputability. 

In  the  study  of  a  science  dealing  largely  with  moral  con- 
ceptions, there  are  two  characteristic  difficulties,  which 
tend  to  increase  one  another  by  their  co-existence.  One 
is  that  each  leading  conception  presupposes  a  number  of 
others,  and  it  is  always  impossible  to  evolve  fully  any 
one  without  constantly  anticipating  the  existence  and 
use  of  all  the  rest.  The  second  difficulty  is  that,  inas- 
much as  all  moral  conceptions  derive  their  meaning  and 
validity  from  their  universality,  this  very  generally  tends 
to  impair  their  clearness,  and  to  infect  them  with  the 
obscurity  of  the  various  channels  of  human  consciousness 
through  which  thay  have  to  pass.  This  obscurity  is 
especially  reflected  in  language,  the  looseness  and  inde- 
terminateness  of  which,  in  all  moral  topics,  is  too 
notorious  to  need  illustration. 

The  terms  good,  evil,  right,  wrong,  ought,  must,  should, 
duty,  conscience,  ohligation,  and  the  like,  have  each  a 
different  meaning  in  the  mouth  of  every  one  who  uses 
them,  and  in  the  ear  of  every  one  who  hears  them. 
The  ethical  and  political  history  of  law,  as  it  has  just  been 
described,  at  once  establishes  how  deeply  from  the  very 
first,  and  through  its  whole  process  of  development,  the 
facts  of  law  are  implicated  with  the  facts  of  the  moial 
5 


78  ELEMENTARY   CONCEPTIONS   AND   TERMS. 

progress  of  individual  and  social  man.  The  facts  of  law 
then  suffer,  as  to  their  capacity  for  ready  exposition,  from 
all  the  cloudiness  which  hangs  round  the  popular  concep- 
tions of  the  moral  facts  of  life,  and  from  all  the  ambiguities 
and  flux  to  which  the  language  expressing  these  concep- 
tions is  notoriously  exposed.  In  order,  then,  to  elucidate 
the  facts,  the  expression  and  arrangement  of  which  con- 
stitutes the  Science  of  Law,  it  becomes  necessary  to  clear 
them  severally  from  their  implication  with  the  facts  of 
ethical  science,  strictly  so  called,  and  to  rescue  the  lan- 
guage expressing  these  facts  from  the  indeterminateness 
it  has  contracted. 

The  primitive  notions  with  which  law  deals  are 
persons  and  things.  The  object  for  wdiich  the  rules — 
at  first  spontaneous  and  casual,  and  afterAvards  regular 
and  consciously  invented — which  constitute  a  nation's 
law  are  made,  is  the  determining  of  the  mutual  relations 
of  the  human  beings  who  form  the  community. 

The  whole  community  may  be  regarded  as  com- 
posed of  an  active  crowd  of  multitudinous  atoms, 
incessantly  crossing  one  another's  path,  and  interfering 
with  one  another's  freedom  of  movement.  The  influence 
of  family  life  and  of  the  simpler  forms  of  agricultural  and 
industrial  co-operation  tend,  of  themselves,  at  the  very 
birth  of  the  State,  to  create  within  the  realm  of 
this  confused  atomic  action  an  increasing  number 
of  fixed  groups  or  centres  of  independent  movement. 
About  the  same  time  another  series  of  events  is  taking 
place,  giving  rise  to  the  phenomena  of  law.  These 
events  are  of  a  diflerent  description  in  difterent  com- 
munities. Either  the  groups  spontaneously  enlarge 
themselves,  and  the  village  absorbs  the  family,  or  some 
one  or  more  of  the  originally  co-equal  groups  enlarge  in 
numbers  or  increase  in  importance  out  of  proportion  to 
the  rest.     Or  the  whole  community  becomes  subjugated 


"person"  and  "thing."  79 

to  the  sway  or  influence  of  some  already  organized 
State.  Each  of  these  classes  of  events  has  been  exhibited 
in  the  early  history  of  celebrated  communities,  and  the 
researches  on  the  subject  are  too  well  known  to  need  to 
be  more  precisely  referred  to  in  this  place.  What  is  of 
importance,  however,  to  notice  is  that,  in  every  case, 
the  final  result  is  the  adjustment  of  the  limits  of  free 
movement  of  the  various  groups  constituting  the  com- 
munity, in  respect  of  their  capacity  for  disturbing  each 
other. 

As  the  groups  break  up  and  the  organic  whole  of 
the  family  becomes  resolved  into  the  individual  human 
beings  composing  it,  the  same  beneficial  result  is  experi- 
enced. The  limits  of  free  movement  of  all  individual 
human  beings  in  the  community,  so  far  as  respects  their 
capacity  for  disturbing  one  another,  are  adjusted  by  a 
series  of  rules,  the  binding  force  of  which  is  generally 
recognized. 

The  next  matter  to  be  considered  is,  what  is  implied  in 
"  the  capacity  of  the  various  human  beings  who  constitute 
the  community  to  disturb  one  another."  This  disturb- 
ance may  obviously  be  effected  in  a  variety  of  ways. 
It  may  be  effected,  for  instance,  by  rude  attempts  to 
invade  and  break  up  the  spontaneous  groups  of  domestic 
and  village  life  into  Avhich  the  originally  barbaric 
elements  organized  themselves.  The  disturbance  may  be 
effected,  again,  by  a  violent  interruption  of  the  effort  of 
members  of  the  groups  to  cultivate  the  soil,  to  build 
houses,  to  store  up  the  products  of  the  ground,  and  to 
create  the  first  beginnings  of  markets  and  merchandise. 
The  disturbance,  again,  may  be  directed  against  the 
embryonic  organ  of  Government  from  which  the  force  of 
law  itself  is  proceeding.  The  free  movement  of  the 
conservator  of  the  public  peace,  of  the  magistrate,  the 
arbitrator,    tlie  judge,    may    be  impeded,   and,    in    this 


80  ELEMENTARY   CONCEPTIONS  AND   TERMS. 

way,  the  growing  progress  of  the  community  may  be 
threatened  in  its  most  vital  point. 

It  is  to  be  noticed,  then,  that  all  these  forms  of 
mutual  disturbance  of  members  of  the  commrinity  by  one 
another  either  touch  human  beings  with  resj^ect  to  the 
outward  phj^sical  substances  (including  the  national 
territory),  which  exist  in  a  community,  or  touch  them 
independently  of  any  reference  to  these  objects.  Both 
kinds  of  disturbance  must  be  of  the  greatest  importance, 
and  the  laws  preventing  and  punishing  them  of  equal 
importance.  The  life  of  the  community,  especially  in  its 
early  days,  can  hardly  be  said  to  depend  less  on  the 
security  for  ownership  than  on  the  security  for  life  or  for 
the  integrity  of  the  family.  Personal  security,  owner- 
ship, family  life,  presuppose  and  imply  one  another ;  and, 
if  one  be  permanently  menaced,  it  is  only  a  question  of 
time  when  the  ruin  of  the  others  is  accomplished 

The  result  of  the  above  analysis  is  that  one  broad 
class  of  oppositions  is  found  to  characterize  the  whole 
field  of  law ;  that  is,  the  opposition  between  the  human 
beings  whose  relations  with  one  another  are  regulated, 
and  the  physical  substances  which  are  the  occasion  of 
great  classes  of  these  regulations.  The  former  are 
styled  persons,  and  the  latter  things.  It  is  obvious  that 
the  distinction  between  persons  and  things  is  neither 
created  nor  first  noticed  by  law.  Its  existence  is 
deeply  laid  both  in  the  natural  and  in  the  moral  world. 
It  underlies,  indeed,  the  thoughts  of  every  one,  and  no 
real  confusion  between  a  human  being  and  the  elements 
of  the  physical  universe  which  he  controls  is  possible. 

It  is  the  peculiarity  of  law,  however,  to  import  into 
the  moral  notions  which  it  handles  a  sharpness  of  distinc- 
tion and  a  clearness  of  limitation  which  is  generally  alien 
to  the  very  nature  of  moral  ideas.  Thus,  when  law  is 
addressed    to   huraan    beings,   it    l>ccomes    essential   to 


HISTORY   OF   THE   LEGAL   TERM   "PERSON."  81 

ascertain  who  the  human  beings  are  who  are  so 
addressed, — whether  it  is  those  alone  who  are  resident 
in  the  territory  of  the  State,  or  who  were  born  in  it, — 
whether  it  is  those  who  through  illness  or  physical 
pressure  are  unable  to  exercise  any  of  their  natural 
functions, — whether  it  extends  to  a  corporate  aggregation 
of  human  beings,  such  as  a  municipality,  a  school,  a  sub- 
ject State.  ^ 

A  human  being,  or  aggregate  body  of  human  beings, 
in  this  exact  and  limited  use  of  the  expression,  is 
a  legal  "  person," — a  term  which,  like  other  legal  terms, 
on  some  sides  covers  more  than  is  covered  by  the  popular 
word,  and  on  other  sides  covers  less.  A  legal  person 
is  a  human  being,  or  aggregate  body  of  human  beings, 
looked  upon  as  a  subject  of  law.  Not  all  human  beings, 
then,  are  legal  persons,  those  being  persons  in  the  popular 
sense  who  are  not  so  in  the  legal ;  and  there  have  been 
fictitious  creations  of  the  imagination  to  Avhich,  for  legal 
reasons,  the  same  term  "  person  "  has  been  applied. 

This  comes  about  in  the  following  way : — A  "  ferson" 
in  the  narrower  and  more  exact  meanino-  of  the  term,  is 
only  knoAvn  to  the  law  as  a  centre  round  which  a  number 
of  rights  and  duties  gather,  and  who  is,  hypothetically, 
in  possession  of  the  moral  and  mental  faculties  needed  to 
enjoy  the  rights  and  perform  the  duties.  Under  a 
condition  of  absolute  slavery,  such  as  has  hardly  ever 
been  known  in  any  civilized  State  in  historical  times,  the 
unhappy  human  beings  who  are  slaves  are  not  persons 
in  this  legal  sense.  They  are  excluded  from  the  benefit 
of  all  legal  rights,  and  they  are  incapable  of  the  voluntary 
performance  of  legal  duties.  Such  advantages  as  they 
enjoy  flow  from  the  arbitrary  and  casual  kindness  of  their 
masters,  and  such  liabilities  as  they  incur  are  imposed  by 
their  masters  and  not  by  law.  But  in  the  condition  of 
slavery  such  as  is  presented  in  Roman  historical  times. 


82  ELEMENTARY   CONCEPTIONS   AND   TERJIS. 

and  especially  under  the  Emperors,  and  in  the  modern 
slavery  of  the  western  hemisphere,  the  slaves  have  always 
had  a  limited  share  of  rights,  as  is  shown  by  the  penalties 
to  which  their  masters  were  and  are  liable  for  cruelty  or 
abuse ;  and  they  have  been  liable  to  duties,  as  is  shown 
by  the  penalties  to  which  they  themselves  were  and  are 
liable  for  offences  against  their  masters  or  the  State. 
Thus,  in  historical  timeg,  slaves  have  always  been  pro- 
perly classed  as  legal  persons,  and  never  have  properly 
belonged  to  the  category  of  things. 

It  may  happen,  however,  that  though  a  human  being 
is  invested  with  rights  and  made  liable  to  the  perform- 
ance of  duties,  yet  he  may,  through  infirmity,  physical 
pressure,  or  other  causes,  be  prevented  from  performing 
the  legal  duties  cast  upon  him.  He  may,  nevertheless, 
continue  to  be  the  object  of  the  care  and  protection  of 
the  State.  The  integrity  of  his  family  relations  is 
secured  to  him,  his  property  is  protected,  and  his 
personal  independence  and  safety  are  strictly  guaranteed. 
He  is,  at  the  same  time,  regarded  as  exempt  from  every 
legal  duty,  because  he  is  unable  to  perform  it.  Special 
devices  may,  indeed,  be  resorted  to,  as  by  interposing 
trustees,  guardians,  and  like  persons,  and  by  casting  new 
and  special  duties  upon  them,  with  the  view  of  making 
their  acts  a  substitute  for  the  defective  or  nugatory  acts 
of  the  incapable  person. 

The  rules  for  the  creation  and  regulation  of  these 
classes  of  substitutive  persons  form  a  large  and  impor- 
tant branch  of  the  law.  The  only  reason  for  alluding 
to  them  at  present  is  to  notice  that  the  fixed  idea  of 
"  personality,"  as  consisting  in  a  capacity  for  enjoying 
rights  and  performing  duties,  is  rigidly  adhered  to  by 
law  even  in  cases  where,  from  the  accidents  or  peculiar 
conditions  of  humanity,  special  devices  have  to  be  re- 
sorted to  in  order  to  make  the  assumed  state  an  actual  one. 


AETIFICIAL   OR   FICTITIOUS   "  PERSONS."  83 

But  a  similar  train  of  fictions  in  a  more  palpal)le 
form  accounts  for  a  still  larger  use  of  the  term  "person 
which  has  obtained  in  some  systems  of  law.  It  was  seen 
that  the  first  conception  of  a  legal  person  was  the 
"  being  the  centre  of  a  group  of  rights  and  duties, 
and  having  the  capacity  to  enjoy  and  perform  them." 
It  may,  however,  happen  that  an  assemblage  of  rights 
and  duties  may  group  themselves  together,  and  yet 
the  particular  person  or  persons  who  form  the  centre 
of  them  cannot  be  directly  ascertained,  or,  for  legal 
pui'poses,  are  shrouded  in  obscurity.  The  performance  of 
such  duties  as  ma}''  exist  may  be  cast,  as  in  the  cases 
already  mentioned,  upon  a  definite  number  of  persons  or 
upon  a  class  of  State  ofiicials,  whom  the  terms  of  appoint- 
ment of  the  persons  who  are  to  enjoy  the  rights  may  not 
yet  have  designated;  and  the  actual  appointment  may  wait 
either  for  the  happenmg  of  conditional  events,  or  even  for 
the  arbitrary  decision  of  a  judge  or  executive  ofiicer. 

It  is  natural  enough,  in  cases  like  this,  that  the  assem- 
blage of  rights  and  duties  forming  the  group  described 
should  themselves  acquire  the  legal  aspect  of  personality, 
the  circumstance  being  suppressed  that  the  human  beings 
who  are  the  central  objects  for  the  advantage  or  dis- 
advantage of  whom  the  group  exists  are  yet  uncertain 
or  undetermined.  This  line  of  thought  explains  the 
creation  of  a  number  of  fictions  in  Roman  law,  which 
would  otherwise  be  either  inexplicable  or  inexcusable. 
Thus  the  fiscus  (that  is,  the  State  viewed  on  its 
revenue  or  exchequer  side),  the  corporate  communities 
of  cities  or  villages,  the  associated  members  of  a  trade 
(as  the  collegia  naviculariorum,  pistorum)  were  all 
severally  treated  as  persons.  In  each  of  these  cases 
the  exact  human  beings  who  were  the  centres  round 
which  the  rights  and  duties  gathered  were  indefinite, 
or  at  least  undetermined,  though  the  rights  and  duties 


84  ELEMENTARY   CONCEPTIONS  AND   TERMS. 

themselves  were  rGclueed  to  the  greatest  amount  of  pre- 
cision. 

The  English  "  corporation  sole,"  as  a  bishop — where 
the  actual  human  beings  contemplated  by  law  are  a 
number  of  persons  living  successively  —  affords  an 
instance  of  a  similar  class  of  fictions.  In  a  like  way, 
by  even  a  bolder  application  of  the  fiction,  the  hcereditas 
jacens,  or  aggregate  rights  and  duties  of  a  deceased 
person  previous  to  acquisition  by  his  successor,  pious 
or  charitable  institutions  {pice  causae),  and  even  lands 
looked  upon  as  subject  to  servitudes  or  entitled  to  the 
benefit  of  them  (prcedium  se7'viens  sive  doviinaiis), 
were,  for  some  purpose,  treated  as  legal  j^ersons.  In 
other  words,  judicial  attention  was  fixed  upon  the  rights 
and  duties  assembled  together  or  particularized,  and,  for 
the  moment,  the  actual  human  beings  interested  were 
kept  in  abeyance,  the  reality  of  their  existence  some- 
where and  at  some  time  being  nevertheless  implied 
throughout. 

The  purpose  of  this  investigation  is  to  establish  that 
the  only  conception  of  a  person  known  to  law  is  that  of 
a  human  being  looked  upon  in  reference  to  his  rights  and 
duties  ;  that,  in  modern  times,  the  class  of  legal  persons 
is  exactly  co-extensive  with  that  of  all  the  members  of 
the  community,  that  is,  the  subjects  of  the  State ;  that, 
in  ancient  times,  there  may  have  been  presented  con- 
ditions of  such  absolute  slavery  that  the  class  of  legal 
persons  comprised  all  persons  in  the  community  except- 
ing slaves;  lastly,  that  for  legal  and  judicial  con- 
venience, it  has  been  found  expedient  to  extend  the  use 
of  the  term  person  in  certain  directions,  in  cases  in  which 
there  are  reasons  for  treating  an  assemblage  of  rights  and 
duties  with  the  same  unity  of  method  as  that  with  which 
they  would  be  treated  if  they  centred  in  a  single  human 
being ;    and   that    the   special  form   which   this  device 


HISTORY  OF  THE  LEGAL  TERM  "  THING."       85 

has  assumed  has  been  sometimes  that  of  treating  an 
indefinite  number  of  human  beings  as  if  they  were 
definite,  and  sometimes  that  of  treating  indeterminate, 
future,  or  hypothetical  human  beings  as  if  they  were 
determinate,  present,  and  actual. 

The  true  opposite  of  a  person  is  a  thing.  It  is 
natural  that  a  similar  series  of  devices  should  have  been 
practised  upon  the  latter  term  as  upon  the  former.  The 
term  thing  ought  strictly  to  be  limited  to  all  those 
physical  substances,  or  detached  portions  of  the  material 
world,  which  form  the  subject  of  that  incessant  competi- 
tion which  it  is  one  main  purpose  of  law  to  arrest.  For 
it  is  one  of  the  chief  ends  of  law  to  ascertain  and  settle 
the  relations  of  persons  to  one  another  in  respect  of  their 
rival  claims  to  appropriate  the  material  products  of 
nature  or  of  art.  These  material  products  need  to  be 
expressed  by  a  legal  term  as  definite  and  precise  as  the 
legal  term  person.  The  term  thing,  which  covers,  in 
popular  speech,  the  whole  of  these  products,  might  witli 
advantage,  for  legal  purposes,  be  strictly  confined  to 
them.  But  this  term  has,  in  fact,  sufiered,  even  in  its 
legal  uses,  certain  extensions  and  deflections,  the  history 
of  which  must  be  described. 

The  term  thing,  and  the  closely  corresponding  Latin 
term  res,  have  been  employed  to  cover  not  only  tangible 
objects,  but  also  those  which  are  intangible.  These  intan- 
gible objects  are  certain  assemblages  of  rights  and  duties 
which  relate  to  things  in  the  strict  sense.  Such  were,  in 
Roman  law,  an  inheritance,  an  obligation,  an  action. 
A  fiction  was  resorted  to  similar  to  that  already  de- 
scribed as  eijiployed  in  extending  the  legal  use  of  the 
term  person.  Attention  was  concentrated  upon  the 
rights  and  duties,  though  it  was  true  that  the  centre 
round  which  these  rights  and  duties  grouped  themselves 
was  a  tangible  object  or  assemblage  of  tangible  objects. 


86  ELEMENTARY    CONCEPTIONS   AND    TERMS. 

Thus,  though  an  inheritance  consists  of  a  multitudi- 
nous number  of  physical  products  and  materials,  the  only 
unity  collecting  them  together  is  found  in  the  combina- 
tion of  rights  and  duties  existing  in  him  who  is  the 
past  or  future  incumbent.  So  with  an  obligation.  The 
subject  matter  of  the  legal  bond  implied  in  an  "  obliga- 
tion" is  frequently,  though  by  no  means  always,  a  thimj 
in  the  popular  sense.  But  attention  is  withdrawn  from 
these  physical  objects,  which  may,  in  any  one  case,  be 
extremely  numerous  and  diversified,  and  is  fixed  on  the 
aggregate  of  rights  and  duties  Avhich  constitute  the  legal 
relationship.  Similarly  with  an  action.  In  each  of  these 
cases,  the  quality  of  physical  unity  is,  as  it  were,  im- 
parted to  the  transaction,  claim,  or  interest  concerned. 

This  extensive  use  of  the  teim  thing  has  been  practised 
in  English  law,  and  also  in  the  "  Code  Napoleon."  In 
England,  the  class  of  "  incorporeal  things  "  is  a  large  and 
important  one,  including  such  objects  as  annuities,  ease- 
ments, tithes,  commons,  and  franchises.  The  sort  of 
justification  which  is  given  of  this  use  of  the  term  tldng 
may  be  gathered  from  the  following  extract  from  a  well- 
known  English  text-book  (Smith's  "Real  and  Personal 
Property  ")  : — 

"  An  annuity,  for  instance,  is  an  incorjwreal  thing ; 
"  for,  although  the  money  which  is  the  fruit  or  product  of 
"the  annuity  is  of  a  corporeal  nature,  yet  the  annuity 
"  itself  which  produces  that  money  is  a  thing  invisible, 
"  and  has  only  a  mental  existence.  The  term  incorporeal 
"  hereditaments  is  sometimes  applied  to  remainders  and 
"  reversions ;  but  it  would  seem  more  accurate  to  treat 
"  of  them  rather  as  interests  in  things,  than  as  things  or 
"  subjects  of  property  themselves." 

It  is  not  easy  to  see  how  an  annuity  has  a  better 
claim  to  be  included  in  the  class  of  "  incorporeal  things  " 
than  a  remainder  or  a  reversion.    Surely  an  annuity  is, 


EXJ?ENSIVE   USES   OF   THE   LEGAL   TEEM    "THING."      87 

equally  with  these,  only  an  interest  in  a  corporeal  thing, 
and  remainders  and  reversions,  equally  with  annuities, 
have  only  a  mental  existence. 

The  use  of  the  word  chose  in  France  may  be  under- 
stood from  the  following  extract  from  M.  Rogron's  "  Com- 
mentary on  the  second  Book  of  the  Code  Napoleon  "  : — 

"  On  entend  par  choses  tout  ce  qui  cxiste  phj'sique- 
"  ment  ou  inoralement,  excepte  I'homme,  si  ce  n'est  dans 
"les  pays  ou  I'homme  est  esclave;  car  les  esclaves  etaient 
"  et  sont  encore  consideres  comme  des  choses." 

This  extension  of  the  term  chose  to  all  that  "  exists 
morally  "  is,  in  fact,  a  confession  that  the  term  needs  to 
have  some  larger  and  vaguer  meaning  impressed  upon  it 
than  that  of  strictly  physical  substance.  The  expression 
"  morally  "  might  allow  of  the  term  being  used  to  express 
whatever  the  writer  pleased.  This  mode  is  still  more 
dangerous  than  that  familiar  to  the  Roman  and  Enoiish 
lawyers. 

It  is  to  be  observed  that,  for  the  special  purpose  of  a 
legal  argument,  or  in  order  to  look  at  a  group  of  rights 
and  duties  from  a  special  point  of  view,  that  which  is 
usually  treated  as  a  'person  may,  provisionally,  be  treated 
as  a  tiling.  Thus  when  a  father  or  master  brings  an 
action  for  the  detention  of,  or  for  injuries  inflicted  upon, 
his  child  or  apprentice,  or  when  a  husband  sues  for 
injuries  inflicted  upon  his  wife,  the  child,  apprentice, 
and  wife  are  in  fact  held  to  be  things.  The  action  is  not 
brought  in  pursuance  of  the  legal  rights  of  the  child, 
apprentice,  or  wife.  For  the  purposes  of  the  action,  they 
might  as  vrell  be  criminals,  slaves,  or  beasts  of  burden. 

The  action  is  brought  in  pursuance  of  the  rights  of 
the  master,  father,  or  husband.  The  persons  who  directly 
sufier  from  the  injury  are,  for  the  purpose  in  hand,  and 
solely  to  the  extent  needed  for  this  purpose, — treated  as 
if  they  were  things,  the  understood  ownership  of  which 


88  ELEMENTAllY    CONCEPTIONS   AND   TERMS. 

law  engages  to  protect.  The  person  who  injures  the 
child,  apprentice,  or  wife  might,  under  some  systems  of 
law,  have  to  incur  the  risk  of  two  sorts  of  actions — one, 
in  which  the  father,  master,  or  husband  is  the  plaintiff; 
and  the  other  in  which  the  person  directly  injured  is  the 
|)laintiff.  In  the  former  case,  the  person  injured  is  treated 
as  a  thing ;  but,  of  course,  not  so  in  the  latter  case. 

It  is  worth  while  also  to  notice  that  the  father, 
master,  or  husband  has  two  classes  of  rights  in  respect 
of  those  severally  dependent  upon  him.  He  has  a  right 
(jus  in  rem)  "  against  all  the  world,"  as  it  is  said,  for 
the  maintenance  of  which  he  is  entitled  to  bring  an 
action  against  persons  who  injure  those  so  dependent 
upon  him ;  and  he  also  has  a  special  right  (Jus  in 
persooiam)  against  those  persons  themselves,  with  respect 
to  the  due  performance  of  the  duties  involved  in  the 
several  relationships. 

From  this  investigation  it  will  appear  that  the  terms 
■person  and  thing,  when  used  in  a  strictly  legal  sense, 
by  no  means  tally  Avith  the  corresponding  terms  as 
popularly  employed.  The  modifications  of  the  meanings 
of  the  legal  terms  are,  nevertheless,  determined  by  strict 
logical  principle,  and  have  a  definite  ethical  and  ety- 
mological histoiy. 

It  has  been  impossible  to  discuss  the  legal  use  of  the 
■  terms  person  and  thing  without  anticipating  again  and 
again  the  legal  use  of  the  terms  o^ight  and  duty.  Such 
anticipations,  however,  are  unavoidable,  in  expounding 
the  principles  of  a  complex  science  in  which  each  concep- 
tion and  tenn  implies  and  connotes  all  the  rest.  The 
only  remedy  is  to  wait  till  every  conception  and  term 
has  been  investigated,  and  then  to  study  the  whole 
subject  afresh  from  the  commencement. 

The  term  o^ight  is  the  central  term   at  once  of  the 


EIGHT   AND   DUTY.  89 

Science  of  Law,  and  of  the  Science  of  Morality.  A 
complete  understanding  of  the  term,  as  it  is  used  in  the 
exposition  of  each  science,  carries  with  it  a  complete 
understandinof  of  the  nature  of  science  itself  The 
difficulty  of  treating  the  subject,  especially  for  purposes 
of  international  communication,  is  all  the  greater  because 
the  English  rigid,  the  Latin  jus,  the  German  redd,  and 
the  French  droit,  are  no  two  of  them  exactly  co-exten- 
sive in  rano-e  of  meanincr.  For  this  reason  it  is  all  the 
more  important  to  bring  into  distinct  relief  the  latent 
conceptions  which  underlie  the  more  important  and 
essential  meanings  of  these  terms  in  the  several  lan- 
guages. The  accidental  meanings  of  the  teinns,  whether 
supplementary  to  or  modifying  of  the  rest,  can  then 
easil}^  be  evolved. 

As  the  State  is  gradually  being  formed,  out  of  the 
initial  family  groups  which  constitute  the  primitive 
community,  the  claims  of  the  individual  being  to  an  inde- 
pendent existence  become  progessively  manifested  in  a 
variety  of  ways.  These  claims  are  enforced,  partly  by  the 
growing  moral  sentiments  of  the  bulk  of  the  community, 
as  these  spontaneously  develop  themselves  under  the 
fosterincj  influences  of  domestic  life  and  industrial 
occupations,  partly  by  the  organized  force  of  the  whole 
community  expressed  in  law.  At  first,  the  personal 
claims  of  each  member  of  the  community  are  the  mere 
outward  form  in  which  the  tendency  to  individualistic,  as 
contrasted  with  corporate,  existence  clothes  itself  The 
individual  member  of  the  community  can  only  exist 
as  such  if  space  is  allowed  him  for  the  free  movement  of 
his  muscles  directed  by  the  free  action  of  his  mental 
faculties.  So  far  as  this  free  movement  is  restricted,  so 
far  are  the  possibilities  of  individual  existence  reduced ; 
and  when  this  movement  is  fettered  on  every  side,  these 
possibilities  become  annihilated.     In  other  words,  the  life 


90        ANALYSIS   OF   THE   CONCEPTION   OF   "  LIBERTY." 

of  the  human  being  loses  its  essential  characteristics  and 
becomes  attenuated  to  a  mere  phase  of  physical  life. 

It  is  necessary  here,  however,  to  interpose  a  caution. 
At  the  first  birth  of  a  nation  the  growth  of  individual 
liberty  is  the  only  test  of  the  possibility  of  moral  and 
social  life.  Yet  when  the  conception  of  liberty  has  been 
definitely  framed,  and  the  enjoyment  of  it  has  once 
been  so  largely  diffused  as  to  secure  the  permanence 
of  the  State,  then  the  occasional  loss  of  liberty  in 
the  case  of  individual  citizens  is  not  only  compatible 
with  the  highest  moral  attainment  in  them,  but  may 
prove  the  condition  for  their  loftiest  development.  Even 
here,  however,  the  loss  of  liberty,  to  the  extent  to  which 
it  exists,  implies  a  degradation  of  the  State,  and,  if 
persisted  in,  can  only  lead  to  its  dissolution. 

It  may,  then,  be  opined  that  the  vital  energy  of  the 
primitive  State  is  exhibited  more  in  the  growth  of  per- 
sonal liberty  than  in  anything  else.  It  is  only  in  a 
condition  of  liberty  that  industrial  occupations  can  be 
pursued;  that  commercial  enterprises  can  be  undertaken; 
that  family  ties  can  be  cherished ;  that  social  bonds  can 
be  gradually  and  slowly  matured ;  and  that  leisure  can 
be  found  for  the  gradual  culture  of  the  various  senti- 
ments, emotions,  and  aspirations,  on  the  mutual  play  of 
which,  throughout  the  whole  communit}^,  the  complex 
life  of  the  State  depends. 

"  Liberty,"  indeed,  is  in  itself  only  a  negative  term, 
and  denotes  the  absence  of  restraint.  But  it  also  con- 
notes a  positive  condition  of  the  most  momentous  sort. 
It  implies  rest,  meditation,  imagination,  slow  and  steady 
culture  of  the  faculties,  combinations  and  associations  for 
all  sorts  of  purposes,  and  especially  that  slowly-formed 
belief  in  the  certain  power  of  carrying  resolutions  into 
action,  on  which  so  much  of  human  strength  and  great- 
ness  depends.      "  Liberty,"    then,    on   its   positive   side, 


EELATIONS   OF   "LIBERTY"   AND   RIGHT.  91 

denotes  tlie  fulness  of  individual  existence.  On  its 
negative  side  it  denotes  the  necessary  restraint  on  all 
which  is  needed  to  promote  the  greatest  possible  amount 
of  liberty  for  each. 

Apart  from  all  thought  of  the  artificial  creations  of 
law,  there  is  no  doubt  some  definite  amount  of  qualifica- 
tion of  the  positive  freedom  of  each  man,  which  presents 
exactly  the  condition  most  favourable,  at  a  given  period, 
to  the  welfare  of  all.  This  amount  of  qualification  may 
be  impossible  to  assign  for  all  periods  and  for  all  nations, 
and  it  wiU  differ  from  period  to  period  and  from  State  to 
State.  The  amount  of  it  actually  existing  is  likely  to  err 
sometimes  by  excess,  sometimes  by  defect.  It  will  be 
determined,  like  other  moral  growths,  partly  by  an 
almost  purely  instinctive  grasp  of  the  only  conditions 
in  which  human  life  is  possible ;  partly  by  the  gra- 
dually and  spontaneously  recorded  dictates  of  human 
experience  ;  partly  by  the  conscious  reflections  of  sages 
or  statesmen. 

The  generic  expression  which  denotes,  for  any  age 
and  country,  the  exact  measure  of  personal  liberty  for 
eveiy  man  which  supplies  the  most  favourable  conditions 
for  the  highest  possible  development  of  the  moral  exist- 
ence of  all,  is  "  rights."  The  correlative  liabilities  of  every 
man  to  respect  the  liberty  so  limited  is  expressed  by  the 
term  "  duties." 

It  appears  at  once,  then,  that,  though  some  classes  of 
rights  are  universally  recognized,  and  seem  to  be  appro- 
priate to  all  stages  of  human  society,  yet  it  can  hardly 
i  >e  said  that  there  are  any  "  rights  of  man "  as  such, 
or  that  there  are  any  modes  of  liberty  or  of  restraint  to 
be  universally  described  as  essentials  of  the  State  in  all 
countries. 

Where  such  expressions  as  "  human  rights "  or 
"  rights  of  man"  are  resorted  to  for  the  purpose  of  popular 


92       ELEMENTARY  CONCEPTIONS  AND  TERMS. 

argument,  they  are  often  extremely  useful,  enclosing, 
as  they  do,  a  logic  peculiar  to  themselves,  though  not 
always  of  the  kind  intended  by  the  speaker.  The  real 
value  of  these  terms  is  that  they  remind  the  violators 
and  corrupters  of  society  that  there  is  a  standard  of 
liberty  and  justice  different  from  that  set  by  their  own 
self-interest  and  passions;  that  the  value  of  this  standard 
has  been  stamped  by  the  general  experience  of  mankind 
in  all  ages  ;  and  that  it  is  fortified  by  the  deepest  associ- 
ations which  have  been  progressively  fashioned  in  the 
mental  constitution  of  all  civilized  men. 

AVhile  the  purely  moral  conception  of  rigJds  and  duties 
is  making  its  way  in  the  strivings  after  liberty  wit- 
nessed by  primitive  times,  the  solidifying  influences  of  law 
are  at  the  same  time  giving  fixity  to  the  existing  concep- 
tions, and  constantly  introducing  modifications  into  them. 

As  the  practice  of  marriage  grows  into  a  custom 
of  marriage,  and  the  custom  into  a  law,  the  liberty  of 
the  husband  and  wife  in  respect  of  one  another  and  in 
respect  of  their  children  becomes  gradually  surrounded 
W"ith  more  and  more  determinately  fixed  limits,  and 
the  liberty  of  all  others  in  respect  of  the  integrity  of 
the  said  marriage-tie  becomes  also  suitably  restrained. 
The  rights  and  duties  of  the  husband,  the  wife,  the 
children,  and  of  all  other  persons  become  closely  marked 
out  and  defined.  The  form  and  evidence  of  the  marriage 
become  matter  of  urgent  concern  and  strict  description. 
The  grounds,  if  any,  of  the  dissolution  of  the  marriage-tie, 
and  of  the  abrogation  of  the  rights  and  duties  thereby 
existing,  demand  also  the  most  accurate  demarcation.  The 
formal  methods  for  the  protection  of  the  rights  and  the 
enforcement  of  the  duties  incident  to  marriage  become 
matter  of  precise  definition.  Not,  indeed,  that  this  order 
of  events  is  chronologically  the  true  one.  In  fact,  the 
rio'hts  and  duties  seldom  come  into  clear  relief  at  all  till 


GROWTH   OF   THE   CO^'CEPTION   OF   LEGAL   RIGHT.        93 

they  have  been  acljucUcated  upon,  and  thus  procedure  and 
rules  for  the  regulation  of  procedure  form  the  initial 
stage  in  the  development  of  true  legal  rights. 

Nor  is  it  correct,  except  by  way  of  illustration,  to 
isolate  the  rights  and  duties  appertaining  to  family  life, 
as  though  they  ever  existed  previously  to,  and  indepen- 
dently of,  other  large  classes  of  rights  and  duties.  The 
rights  to  personal  security,  as  the  topic  of  criminal  law, 
are  natui'ally  among  the  earliest  appreciated  by  a  rising 
State.  Not,  indeed,  that  human  life  itself  is  regarded 
as  having  any  especial  value,  but  the  need  for  reliance 
upon  the  good  faith  of  others  and  the  horror  of  parti- 
cula,r  forms  of  crime,  especially  any  partaking  of  impiety, 
are  felt  sufficiently  keenly  to  generate  a  prevailing  dis- 
position to  punish  those  offences  by  which  personal 
security  is  most  obviously  menaced. 

Ownership,  again,  as  a  fact,  instantly  gives  rise  to  the 
conception  of  rights  of  ownership,  and  to  corresponding 
duties,  lying  upon  all  members  of  the  community,  to 
abstain  from  interfering  with  what  belongs  to  recogiiized 
owners.  The  recognition  of  this  class  of  rights  and 
duties  calls  for  a  description  of  what  things  may  be 
a,ppropriated,  and  what  may  not ;  of  the  acts  or  events 
which  shall  be  taken  as  signs  that  rights  of  ownership 
have  attached  ;  of  the  provisions  for  distributing  things 
owned  on  the  death  of  an  owner ;  and  of  the  methods 
for  making  the  rights  of  ownership  available  by  the 
direct  interposition  of  courts  of  law  or  otherwise. 

When  the  next  stage  of  social  development  is  reached, 
at  which  rights  under  contracts  come  to  be  recognized,  a 
certain  modification  in  the  conception  of  a  right  is 
attained.  In  the  case  of  the  former  class  of  rights — those 
appertaining  to  family  life,  to  personal  security,  and  to 
ownership — the  liberty  of  one  or  even  of  a  few  persons 
is  enlarged,  and  the  liberty  of  all  other  persons  in  the 


94-  MODES   OF   CLASSIFYING   IIIGHTS. 

community  is  narrowed.  In  the  case  of  contract,  on  the 
other  hand,  the  liberty  of  one  person  is  nan-owed,  the 
liberty  of  another  proportionately  enlarged,  or  the  liberty 
of  each  of  two  persons  is  enlarged  in  some  respects  and 
narrowed  in  others.  The  liberty  of  the  other  persons  in 
the  community  is  left  just  as  it  was. 

A  similar  class  of  rights  is  presented  in  the  case  of 
persons  who  are  held  liable  by  law  to  make  compen- 
sation for  the  invasion  of  rio-hts  of  the  general  class 
first  alluded  to.  The  person  who  has  suffered  has  a 
right  to  compensation  against  the  injurer  alone.  The 
injurer's  liberty  is  thus  narrowed;  that  of  the  person 
injm-ed  is  enlarged.  This  circumstance  has  given  rise 
to  a  celebrated  division  of  rio-hts  recoofnized  in  Roman 
law,  and,  more  especially,  by  the  commentators  upon 
that  law.  Accordinof  to  this  division,  all  rio-hts  either 
imply  duties  lying  upon  all  members  of  the  com- 
munity whatever,  other  than  the  person  vested  with  the 
right ;  or  else  they  imply  duties  lying  upon  one  person  or 
a  few  persons  only.  To  the  fonner  class  belong  all 
rights  of  ownership,  rights  to  personal  security,  and 
certain  of  the  rights  ensuing  from  family  relationship. 
To  the  latter  class  belong  the  rio-hts  ensuinjj  from  con- 
tract,  or  wrong,  and  certain  other  of  the  rights  arising 
from  family  relationship  ;  such,  for  instance,  as  the  rights 
and  duties  of  husband  and  wife,  father  and  child,  in 
respect  to  one  another,  and  irrespective  of  their  relations 
to  the  outer  world  (jus  in  rem  and  jus  in  i:)ersonain). 

It  will,  however,  have  been  seen  that  the  general  effect 
of  the  sharp  limitation  which  law  gives  to  rights  and 
duties  results  not  only  in  distributing  the  field  of  free 
action  among  all  members  of  the  community,  but  in  dis- 
tributing that  field  in  the  most  definite,  and,  as  it  may 
liap|)en,  in  the  most  artificial  way.  The  particular  way 
in  ^^•hich  the  liberty  of  one  shall  be  sacrificed  to  that  of 


EXACT   ANALYSIS    OF   A   LEGAL   RIGHT.  95 

anotlier  must  depend  upon  the  discretion  of  the  legislature, 
and  it  is  likely  enough  that  the  greatest  mistakes  will  be 
made  from  time  to  time  by  way  both  of  excess  and  defect. 
It  is  a  main  purpose  of  a  wise  legislature  to  correct  these 
errors  of  the  past  in  both  directions. 

It  has  been  noticed  by  the  best  German  writers  that 
the  general  effect  of  law  is  to  enlarge  man's  empire  over 
the  outward  world  of  men  and  things.  By  family  law, 
the  limit  of  his  power  of  control  over  the  wills  of  his 
family  is  ascertained.  By  the  law  of  ownership,  the 
limits  of  his  power  of  control  over  all  persons  whaV 
ever,  in  respect  of  things,  are  ascertained.  By  the 
law  of  contract,  the  limit  of  his  power  of  control  over 
special  persons  is  ascertained.  Through  the  operation 
of  all  these  laws  generally,  much  of  the  uncertainty  of 
the  future  is  banished  ;  the  capriciousness  of  the  human 
will  and  the  undulations  of  human  passion  are  removed 
out  of  the  calculation,  and  man  can  base  his  projects 
upon  elements  possessing  an  amount  of  certainty  and 
definiteness  which,  in  the  absence  of  laws  of  the  nature 
here  described,  would  be  wholly  impossible. 

The  above  investigation  prepares  the  way  for  a  more 
exact  analysis  and  definition  of  a  legal  r[(jlit  and  duty.  A 
legal  right  is  seen,  first  of  all,  to  draw  all  its  validity  from 
the  direct  interference  of  the  State.  It  may  or  may  not 
correspond  with  a  co-existent  or  antecedent  moral  right. 
It  may  be  more  or  less  extensive  than  such  a  right.  But, 
in  all  cases,  it  arises  purely  from  the  energy  of  the  law 
itself,  as  expressing  the  will  of  the  supreme  political 
authority,  and  its  validity  must  be  judged  from  a  political, 
and  not  from  a  moral,  stand-point, — if  ever  these  two  can 
be  opposed  to  one  another. 

When  the  State  thus  imparts  a  right,  it  concedes  to 
one  of  its  number  a  limited  amount  of  its  own  indefinite 
power  of  control  over  all  its  subjects.     Instead  of  dii'ectly 


'JO  CRIMES   m   RELATION   TO   RIGHTS. 

infringing  (as  it  has  power  to  do)  the  liberty  of  certain 
of  its  citizens,  it  concedes  or  delegates  to  certain  others 
of  its  citizens  the  capacity  of  infringing  that  liberty. 
The  State,  strictly  speaking,  operates  by  both  methods. 
It  sometimes,  indeed,  infringes  or  restrains  liberty 
directly  by  its  own  immediate  act,  in  imposing  duties 
without  making  any  rights  co-extensive  with  them ;  or, 
at  the  least,  where  the  rights  thereby  accorded  to  private 
persons  are  treated  as  of  subordinate  importance. 

This  is  the  real  test  of  what  is  a  "  crune."  A  crime 
is  an  act  which  the  State,  for  purposes  of  its  own, 
resolves  absolutely  to  prevent,  and  to  prevent  which 
it  resorts  to  such  measures  as,  without  respect  to  any 
other  considerations,  seem  most  likely  to  be  effective. 
A  crime  is,  indeed,  generally,  an  undue  use  of  the  liberty 
of  one  person  at  the  expense  of  the  proper  liberty  of 
others.  But  it  may  imply  no  invasion  whatever  of  the 
libertv  of  another ;  as  in  the  case  of  coining,  cheating  the 
revenue,  and  some  sorts  of  treason.  Nevertheless,  the  State 
uses  all  its  energy  to  prevent  it,  and  directly  restrains  the 
liberty  of  all  persons  so  far  as  that  liberty  would  imply 
the  opportunity  to  commit  the  acts  it  designates  as  crimes. 

But  the  State  also  acts  by  another  method,  and  parts 
with  some  of  its  controlling  power  to  the  persons  to 
whom  it  concedes  rights.  It  marks  out  their  realm  of 
free  action,  and  the  corresponding  limits  upon  the  free 
action  of  others.  The  State  promises  the  aid  of  all  its 
machinery  of  justice  and  police  (though  sometimes  illogi- 
cally,  on  condition  of  payment  for  its  use)  for  the  support 
of  the  liberty  it  concedes,  that  is,  of  the  rights  of  the 
persons  who  are  thus  favoured  by  the  State  to  the 
immediate  disparagement  of  the  rest.  These  rights  may 
have  regard  to  family  relationship,  ownership,  contract, 
or  personal  security  and  reputation.  Some  of  them  may 
derive  additional  support   from   the    criminal   law,  and 


DEFINITION   OF   TEEM   "RIGHT."  97 

from  the  direct  duties  it  imposes.  But,  whether  or  not 
re-inforced  from  this  quarter,  the  nature  and  mode  of 
protection  of  all  these  classes  of  rights  is,  in  general 
outline,  identical. 

In  consequence  of  the  existence  of  the  right,  one 
man  can  do  more  and  another  less  than  he  could  in  the 
absence  of  it.  The  right  in  every  case  comes  directly  from 
the  State,  and  owes  its  continuing  validity  to  the  State. 
The  law  expresses  in  detail  the  nature  and  limit  of  the 
right,  the  mode  in  which  it  accrues,  the  circumstances 
through  which  it  may  be  lost,  and  the  modes  of  its 
protection  or  of  obtaining  compensation  for  its  violation. 

A  right,  then,  is  a  measure  of  control  delegated  by 
tlie  supreme  political  authority  of  a  State  to  persons 
said  to  be  thereby  invested  with  the  right  over  the  acts 
of  other  pjcrsons  said  to  be  thereby  made  liable  to  the 
performance  of  a  duty. 

The  above  investigation,  ethical  and  historical,  leads 
to  a  consideration  of  two  topics  which  have  each  been 
largely  handled  by  political  writers,  and  the  careless 
treatment  of  which  in  popular  discourse  has  often  been 
attended  with  injurious  consequences.  One  of  these 
topics  is  the  true  nature  of  political  libeHy,  and  the 
other,  the  possibility  of  the  State  having  legal  rights 
against  its  oiun  subjects. 

It  ibUows  at  once,  from  the  above  inquiry  into  the 
nature  and  history  of  legal  rights,  that  all  rights  accorded 
to  one  man  imply  a  restriction  upon  the  freedom  of 
others.  The  region  of  one  man's  untrammelled  action  is 
narrowed  as  the  region  of  another  man's  untrammelled 
action  is  extended.  This  result  cannot  be  avoided  by 
any  political  artifice.  If  one  man  is  allowed  to  appro- 
priate, all  other  men  are  commanded  to  abstain  from 
interfering  with  his  use  of  the  thing  appropriated.     If 


98  NATURE   OF  POLITICAL   LIBERTY. 

one  man  has  a  certain  freedom  of  locomotion  and  of 
speech  conceded  to  him,  the  same  law  which  concedes  this 
freedom  does,  by  its  very  terms,  restrict  the  freedom  of 
those  who  might  desire  to  interrupt  the  locomotion  or 
the  speech. 

The  problem  for  the  legislator  is  to  discover  what 
amount  of  restriction  upon  the  liberty  of  each  tends 
to  secure  the  greatest  aggregate  amount  of  liberty  for 
all.  It  need  not  be  said  that  this  is  the  hardest  of  all 
political  problems,  and,  even  in  the  absence  of  tyrannical 
intentions  or  gross  abuses,  the  best  and  wisest  legis- 
lators have  made,  and  still  continue  to  make,  the  most 
flagrant  mistakes  in  their  endeavours  to  solve  the 
problem. 

It  has  thus  come  about  that  liberty  is  an  earnest 
political  cry,  as  though  there  might  be  a  condition  of 
society  in  which  no  man's  actions  were  restrained  in 
any  direction  whatever.  The  true  meaning  and  deep 
intent  of  the  cry  is  that  no  man's  liberty  ought  to  be 
restrained  except  for  the  purpose  of  indirectly  en- 
larging the  liberty  of  all  men,  including  himself;  and 
that  the  progressive  influence  of  good  laws,  combined 
with  other  moral  forces,  is  to  train  men  so  effectually  to 
the  promotion  of  the  general  good,  that  the  very  impulses 
to  trespass  beyond  the  proper  region  of  free  action  arc 
not  only  controlled,  but  exterminated. 

This  may  be  expressed  in  anotlier  way  by  saying 
that  the  ultimate  aim  of  legislation  is  then  most  near  to 
being  achieved  when  the  legal  rights  and  duties  of  all 
persons  in  the  community  are  so  happily  distributed 
and  adjusted  that  the  most  favourable  conditions  are 
attained  for  the  recognition  and  enforcement  of  the  moral 
rights  and  duties  of  all. 

The  other  topic  adverted  to  is  that  of  the  possibility 
of  a  State  having  rights  against  its  own  subjects.      That 


POSSIBILITY   OF   THE   STATE   HAVING   RIGHTS.  99 

the  State,  through  its  representative, — the  supreme  politi- 
cal authority  of  the  day, — can  own  land  and  other  things, 
make  contracts  with  its  subjects,  bring  actions  against 
its  subjects,  and,  generally,  appear  in  courts  of  justice  in 
exactly  the  same  guise  as  any  other  corporate  body,  is 
sufficiently  notorious.  But  the  question  has  been  properly 
propounded  as  to  whether,  in  these  and  like  cases,  the 
claims  asserted  on  behalf  of  the  State  are,  strictly  speak- 
ing, legal  rights,  or  are  only  analogous  to  such  rights. 

The  latter  view  would  seem  the  correct  one,  because 
the  State  is  the  sole  origin  and  fountain  of  all  rights,  and 
the  very  nature  of  a  right  implies  that  it  emanates  from 
some  authority  other  than  the  person  in  whom  it  is 
vested.  The  State,  then,  cannot  be  regarded  as  conceding 
rights  to  itself,  and  therefore  its  claims  of  the  nature  of 
rights  of  ownership,  of  rights  under  contracts,  of  rights 
of  action,  and  the  like,  are  only  nominally  riglds.  It  is 
for  the  public  convenience  that  the  legal  principles,  as 
recognized  in  courts  of  justice,  applicable  to  the  deter- 
mination of  claims  of  this  nature,  should  be  the  same  as 
those  applicable  when  the  legal  rights  of  private  citizens 
come  into  controversy. 

These  observations,  of  course,  only  refer  to  the  claims 
of  the  State  itself,  and  not  to  those  of  any  constituent 
portion  of  its  supreme  political  authority,  such  as  the 
rights  of  ownership  or  of  contract  belonging  to  the 
English  Sovereign  in  her  personal  capacity.  These 
rights  are,  obviously,  rights  in  the  severest  sense,  though 
it  may  happen  that,  owing  to  the  peculiar  situation  of 
the  person  in  whom  they  vest,  some  special  principles, 
probably  of  antique  origin,  apply  to  their  enforcement 
in  courts  of  justice. 

The  purpose  which  law  has  in  creating  rights  and 
duties  is  that  of  controllino;  the  ads   of  the   members 


100  POPULAR   USES   OF   THE   TERM   "ACT." 

of  the  community  in  their  intercourse  with  one  another. 
The  term  act,  in  ordinary  usage,  has  a  number  of  different 
meanings,  and  the  context  amidst  which  the  term  is 
used  is  in  most  cases  sufficiently  clear  to  prevent  am- 
biguity. But,  for  purposes  of  law,  the  quick  sensibilities 
of  men  in  a  conversational  mood  cannot  be  relied  upon 
to  secure  fixity,  or  at  least  certainty,  of  meaning,  and  it  is 
these  very  sensibilities  which  become  sources  of  error  in 
interpreting  and  applying  law. 

In  common  speech  the  term  act  is  sometimes  applied 
to  what  is  purely  internal,  when  an  act  of  the  will,  or  of 
the  conscience,  or  of  the  imaginative  faculty,  is  spoken 
of  Sometimes,  again,  the  term  is  limited  to  the  muscular 
motions  of  a  human  being,  when  these  muscular  motions 
are  voluntary — a  qualifying  term  which,  together  with 
iv'dl  itself,  needs  precise  definition. 

At  other  times,  again,  the  term  act  denotes  the  volun- 
tary muscular  motions  of  a  human  being  attended  with 
some  few  of  their  immediate  consequences,  as  in  speaking 
of  a  good  act  or  a  bad  act,  an  act  of  charity,  or  an  act 
of  violence. 

Lastly,  the  word  is  occasionally  used  to  cover  the 
complex  actions  of  a  number  of  individual  persons,  and 
also  a  long  train  of  complex  consequences.  Thus  the 
beheading  of  Charles  I.  would  be  called .  the  act,  not 
only  of  the  executioner  or  of  the  regicides,  but  of  a 
number  of  other  persons,  and  attention  would  not  be 
fixed  only  upon  the  muscular  effort  by  which  the  head 
was  severed  from  the  body,  but  upon  the  general  conse- 
quences and  political  significance  of  what  was  done.  So 
the  Indian  mutiny;  the  insurrection  of  the  Southern 
States  of  America ;  the  passing  of  the  Bill  for  the  dis- 
e  stablishment  of  the  English  Church  in  Ireland  ;  are  each 
frequently  designated  as  single  and  indivisible  acts. 

Thus  law,  in  availing  itself  of  the  term  act,  nnist  liave 


DEFINITION  OF  LEGAL  TERMS  "  ACT  "  AND  "  EVENT."  101 

]-ecourse  to  some  one  of  these  popular  meanings,  and 
when  it  has  selected  one,  it  must  adliere  to  it  without 
deviation.  The  only  one  which  is  at  all  adapted  to  its 
purposes  is  that  of  voluntary  rauscular  motion.  The 
application  of  the  term  act  to  resolutions  of  the  will 
'or  the  conscience  is  unsuitable  for  law,  because  law  is 
directly  concerned  only  with  that  part  of  men's  condvict 
which  is  exposed  to  the  judgment  of  the  senses.  What- 
ever inquiry  it  directs  to  be  made  into  states  of  mind  and 
feeling  is  wholly  subordinate  and  auxiliary  to  the  in- 
quiry into  the  probable  consequences,  and,  therefore,  into 
the  true  nature,  of  voluntary  muscular  7notio7is. 

Acts,  then,  in  the  eye  of  law  are  such  muscular  motions 
as  are  preceded  by  the  peculiar  phenomenon  entitled  will. 
All  other  outward  movements — whether  occasioned  by 
the  merely  animal  energy  of  organized  life  or  by  other 
physical  forces,  and  whether  exhibited  in  a  changed 
situation  of  persons  towards  each  other,  of  things  to- 
wards each  other,  or  of  persons  towards  things — are 
denominated,  for  purposes  of  law,  events. 

Law,  then,  classifies  all  the  possible  outward  move- 
ments, the  aggregate  of  which  constitutes  the  whole  sum 
of  human  life  and  of  physical  activity,  under  one  or 
other  of  the  two  great  categories  of  acts  or  events.  The 
possibility  of  the  separation  between  these  two  categories 
is,  in  many  instances,  matter  of  the  most  urgent  concern 
for  the  lawgiver.  The  question  of  imputability  and 
liability  to  punishment  must  constantly  depend  for  its 
correct  answer  upon  whether  an  alleged  or  proved  muscular 
motion  was  or  was  not  preceded  by  the  phenomenon  styled 
tuill — whether,  in  fact,  it  was  an  act  or  an  event. 

The  term  will  is  thus  seen  to  have  its  meaning  pre- 
supposed in  the  use  of  the  term  act.     It  happens,  indeed, 
that  even  a  still  looser  use,  in  popular  phraseology,  has 
G 


102        NATURE  AND  PROVTNCE  OF  "  WILL." 

been  made  of  ^vill  than  of  act.  In  fixing  upon  a  definite 
use  of  the  term  for  purposes  of  law,  special  care  has 
to  be  taken  that  no  psychological  theory  is  propounded 
by  that  use.  It  is  never  to  be  forgotten  that  law  is 
directly  addressed  to  the  coarser  needs  and  conditions 
of  human  nature,  and  not  to  the  finer ;  and  that  it  seeks, 
in  the  process  of  its  execution,  for  the  sympathetic  co- 
operation of  the  casual  bystander  and  of  the  well-inten- 
tioned though  common  crowd  of  superficial  observers. 
Fui-thermore,  law,  in  determining  the  rules  of  its  own 
application,  registers  not  the  speculations  and  conjec- 
tures of  the  man  of  science,  but  the  everyday  results 
of  vulgar  experience. 

For  these  reasons,  law  embodies  the  practical  con- 
clusion of  all  men, — and  the  firm  persuasion  of  most 
men, — that,  within  limits  at  all  events,  men  can  be  de- 
terred from  courses  of  conduct  by  the  influence  of 
nnotives,  that  is,  by  an  expectation  of  the  consequences  of 
their  conduct.  This  implies  that  men  have  the  choice 
of  directing  their  conduct  in  one  way  or  in  another,  as 
seems  to  them  good. 

The  first  outward  element  in  what  is  called  conduct 
is  muscular  motion,  whether  of  the  hands,  tongue,  face, 
or  limbs  generally.  It  is  assumed  that,  before  this 
motion  takes  place,  the  consequences  of  it  are  pondered, 
however  rapidly,  instinctively,  or  almost  unconsciously. 

Between  these  moments  of  pondering  and  the  moments 
of  muscular  motion,  there  is  held  to  intervene  a  moment 
of  resolution  or  decision,  of  such  an  energetic  and  pecu- 
liar nature  as,  under  average  conditions  of  physical 
health,  and  in  the  absence  of  outward  restraint,  is  in- 
variably followed  by  the  muscular  motion  resolved  upon. 
It  is  this  mental  resolution  or  final  determining  effort 
which,  for  the  purposes  of  law,  constitutes  loill.  It  is  the 
presence  or  absence  of  this   which,   in   cases  where  the 


"intention"  as  qualifying  acts.  103 

muscular   motions   are  identical,   distinguishes    between 
a  true  act  and  an  event. 

It  imposes  an  unceasing  strain  upon  the  acuteness 
of  the  judge  to  ascertain,  in  certain  cases  of  disease 
or  violent  interference  from  without,  whether  the  con- 
ditions of  the  normal  operations  of  the  will  were  truly- 
present,  and  therefore  an  alleged  act  can  be  properly- 
imputed  to  the  person  whose  muscles  certamly  moved  in 
such  a  way  as  to  occasion  suffering  to  another.  There 
are  cases  of  disease  in  which  a  person  cannot  control  the 
movements  of  his  muscles.  There  are  conceivable  cases 
of  physical  pressure,  where  one  person  has,  as  it  were, 
brought  under  his  o-wn  control  the  muscular  system  of 
another  in  such  a  way  that  that  other  becomes,  for  the 
moment,  the  mere  passive  instrument  of  the  person  con- 
trollincr  him.  In  both  these  classes  of  cases  will  is 
absent,  and  there  is  no  true  act. 

It  will  be  seen  that  it  is  acts  ivitJi  their  consequences, 
and  not  acts  themselves  in  their  isolation,  which  are  the 
true  objects  of  judicial  investigations.  It  is  the  events 
which  immediately  follow  upon  a  voluntary  muscular 
motion  which  give  it  its  true  character  and  description. 
The  same  voluntary  muscular  motion  may  precede  a  deed 
of  kindness  and  a  deed  of  cruelty;  may  result  in  a 
theft  or  a  martyrdom.  It  is  upon  the  immediate 
conse(iuences  of  acts  that  law  fixes  its  eye ;  and  the 
degree  of  imputability  -of  an  offence  depends  upon  the  cor- 
rectness of  foresight,  at  the  moment  of  action,  which 
can  be  attributed  to  the  person  acting.  This  foresight,  or 
this  attitude  of  mind,  of  a  person  about  to  act,  towards 
the  immediate  consequences  of  his  act,  is  denominated 
intention. 

It  may  be  said  that  it  is  impossible  to  draw  the  line 
between  the  immediate  and  the  remoter  consequences,  and 


104  ANALYSIS   OF   "  INTENTION." 

that  therefore  it  must  be  necessary  to  explore  the  con- 
dition of  the  mind  of  the  person  who  acts,  in  reference 
to  all  the  consequences  of  the  act,  however  long  and 
involved  the  train  of  them  be.  But  the  supposition  of 
this  difficulty  affords  a  good  instance  of  the  practical  mode 
in  which  law  cuts  knots  which  are  inexplicable  to 
psychology.  It  is  found  that,  though,  in  numerous  cases, 
the  remote  and  immediate  consequences  cannot  be  severed, 
yet  that  in  the  vast  majority  of  cases  a  very  real  and  prac- 
tical line  is  drawn,  by  common  observers,  between  one 
class  of  consequences  and  the  other. 

The  immediateness  of  consequences,  for  pnrposes  of 
this  common  observation,  depends  upon  a  variety  of  diffe- 
rent elements,  of  which  juxtaposition  in  point  of  time  or 
of  space,  and  probability  of  sequence,  are  the  most  con- 
siderable. Thus  the  act  of  handling  a  deadly  weapon 
may  have  a  mmiber  of  consequences  of  a  varied  nature, 
though  some  of  them  will  at  once  be  classed,  by  ordinary 
observers,  as  immediate,  and  the  remainder  as  remote. 

Among  the  immediate  consequences  are  striking  a 
person  with  it,  causing  his  death  thereby,  and  then  com- 
mitting suicide  with  the  same  weapon.  Among  the  same 
class  of  consequences  would  also  be  reckoned  the  wrest- 
ing the  weapon  from  the  hands  of  some  one  about  to 
do  injury  with  it,  or  the  turning  it  to  its  proper  purpose 
as  an  instrument  of  war,  of  industry,  or  of  mechanical 
application.  Among  the  remoter  consequences,  on  the 
other  hand,  of  handling  the  same  weapon  may  be  the 
robbery  of  the  person  killed,  the  appropriation  of  the 
value  of  his  life-insurance  policy,  the  disappointment  of 
justice— or,  in  the  other  imagined  case,  the  prevention 
of  a  crime. 

Now,  it  is  neither  the  act  alone,  nor  the  act  with  its 
immediate  consequences  alone,  which  it  is  the  policy  of 
the  law  to  prevent.  Yet  the  only  safe  general  presum}>tion 


MODES   OF   ASCERTAINING   INTENTION.  105 

that  can  be  made  is  that,  in  the  absence  of  special 
obstacles,  men  foresee,  at  the  moment  of  action,  the  im- 
mediate consequences  of  their  acts,  and  accordingly  as 
they  hold  those  consequences  to  be  desirable  or  otherwise 
(whether  as  ends  in  themselves  or  as  means  to  ulterior 
ends),  they  seek  to  avoid  them  by  acting  or  by  abstaining 
from  action. 

Whether,  in  a  particular  case,  a  man  actually  has 
foreseen  the  immediate  consequences  of  his  act,  becomes 
often  the  most  perplexed  topic  for  the  application  of  the 
judicial  criterion.  A  variety  of  circumstances  may  tend 
to  rebut  the  general  presumption  that  men  foresee  the 
immediate  consequences  of  their  acts.  Some  of  these 
are  general  in  their  nature,  and  affect  all  men  at  certain 
periods  in  their  lives  or  under  certain  common  conditions. 
Others  are  temporary,  local,  or  accidental  in  their  nature; 
and  the  presence  of  these  has  to  be  established,  not,  as 
with  the  former,  by  the  force  of  general  presumptions, 
but  by  that  of  special  evidence. 

To  the  former  more  general  class  of  circumstances, 
the  effect  of  which  is  to  prevent  the  immediate  conse- 
quences of  an  act  being  correctly  apprehended,  and  so 
to  qualify  intention,  the  most  familiar  are  those  arising 
from  Age,  In  early  infancy  a  child  voluntarily  moves 
its  muscles  in  all  sorts  of  directions,  and  brandishes  in 
a  variety  of  ways  every  implement  within  its  reach.  The 
actual  immediate  consequences  of  this  playfulness  may 
occasionally  be  serious,  bringing  detriment  to  things  and 
persons.  But,  during  the  first  years  of  infancy,  no  one 
supposes  it  possible  that  the  child  could  have  foreseen 
what  would  happen,  and  therefore  law,  in  all  countries, 
credits  an  infant  child  with  an  absolute  incapacity  of 
doing  a  wrongful  act.  Where  compensation  is  awarded 
to  sufferers,  it  must  be  exacted  from  the  parents  or 
guardians  of  the  child,  who   might  have   foreseen  and 


106  PRESUMPTIONS   IN    FAVOUR   OF   "INFANCY." 

pro^dded  against  the  damage,  just  as  the  owner  of  a 
dangerous  animal,  or  of  a  slave  in  Roman  times,  would 
be  responsible  for  injuries  inflicted  by  them. 

The  absolute  incapacity  of  forming  an  intention 
attributed  in  all  cases  to  the  early  years  of  infancy,  is 
extended,  in  all  systems  of  law,  to  a  later  age  in  respect 
of  the  generality  of  the  more  unfrequent  acts,  of  which 
nothing  but  time  and  experience  could  teach  the  imme- 
diate consequences;  and  even  to  the  time  of  early 
manhood  in  respect  of  all  those  acts  to  which  an  ex- 
tremely complex  condition  of  civilization  has  annexed 
consequences  in  all  respects  artificial  and  arbitrary. 

What  shall  be  the  age  at  which  the  several  periods 
of  exemption  from  responsibility  shall  terminate  must 
be  positively  settled  by  the  law  of  each  country.  It 
will  vary  with  the  climate,  the  mode  of  education,  and 
the  manners  of  each  particular  country,  and  of  the  same 
country  at  different  epochs.  It  will  be  made  to  vary 
again  in  respect  of  the  sort  of  transactions  contemplated, 
a  greater  and  earlier  formed  capacity  of  foresight  being 
anticipated  as  to  acts  the  doing  of  which  is  discouraged 
by  universal  custom  and  by  widely  diffused  moral  senti- 
ments, than  as  to  acts  which  are  only  discountenanced  by 
the  positive  rules  of  law. 

It  is  upon  this  principle,  as  will  be  explained  more 
fuUy  in  a  later  chapter,  that,  in  England,  criminal  iiTe- 
sponsibility  ceases  at  an  earlier  age  than  civil,  while  an 
absolute  presumption  of  irresponsibility  in  respect  to 
crime  is  only  admitted  for  the  fii'st  seven  years  of  human 
life. 

Besides,  however,  such  general  circumstances  as 
impair  the  capacity  of  all  men,  at  certain  periods,  for 
forming  an  intention,  there  may  be  local  or  temporary 
circumstances,  the  presence  of  which,  when  judicially 
established,  is  presumed  to  have  a  similar  effect.     The 


PRESUMPTIONS   IN   FAVOUR   OF   "  INSANITY."         107 

most  remarkable  of  these  circumstances  is  insanity,  of 
which  congenital  idiocy,  and  inebriety  voluntarily 
brought  about,  are,  in  fact,  only  specific  cases. 

Insanity,  in  the  largest  sense  of  the  term,  as  used  for 
legal  purposes,  is  a  temporary  or  permanent  disorder  of 
the  relations  between  the  mental  and  physical  functions 
of  man,  of  such  a  nature  as  to  destroy  the  value  of  the 
current  presumptions,  founded  on  those  relations  as  exist- 
ing in  a  condition  of  health. 

It  will  be  noticed  that  in  this  description  of  in- 
sanity, not  a  word  is  said  which  implies  the  truth  or 
falsehood  of  any  physiological  or  psychological  theory. 
All  that  the  lawyer  and  the  judge,  within  their  own 
province,  know  about  insanity  is  that  the  case  is  from 
time  to  time  presented  to  their  notice  of  a  person  having 
done  an  act,  of  which  a  person  in  an  average  con- 
dition of  health  would  be  properly  presumed  to  know  the 
immediate  consequences,  yet  of  which  he  certainly  did  not 
know  the  immediate  consequences. 

Medical  evidence  on  the  subject  says  that  the  case 
presented  belongs  to  a  typical  form  of  disease.  The 
same  evidence  varies  a  good  deal  as  to  the  nature  and 
history  of  the  disease,  and  as  to  whether  it  attacks  the 
mental  faculties  directly,  or  only  indirectly  through  the 
medium  of  the  body ;  or  even  as  to  whether  the  mental 
faculties  and  the  bodily  can,  for  scientific  purposes,  be 
contemplated  apart.  Medical  evidence,  again,  is  found  to 
differ  largely  as  to  the  possible  extent  and  operation  of 
the  disease ;  as  to  the  way  in  which  it  assaults  the 
moral  susceptibilities,  confusing  the  notions  of  right  and 
wrong;  and  as  to  the  way  it  impairs  free  action  as  well 
as  correct  judgment,  generating  irresistible  impulses,  or 
hindering  action  when  on  the  verge  of  performance. 

This  notorious  conflict  and  hesitation  of  medical 
opinion   would  be   extremely  perplexing  to  the  judoe. 


108      JUDICIAL   AND  MEDICAL  ASPECTS   OF   INSANITY. 

did  he  allow  himself  for  a  moment  to  be  diverted  from  a 
purely  legal  view  of  the  matter.  The  most  that 
medical  evidence  can  do  is  to  lift  the  case  out  of  that 
class  for  which  the  ordinary  presumptions,  applicable 
under  conditions  of  average  health,  may  universally  serve, 
and,  by  calling  the  judge's  attention  to  the  general 
phenomena  observable  in  cases  like  the  one  under  con- 
sideration, to  construct  a  new  class  of  presumptions,  by 
which  the  circumstances  of  this  particular  case  may  be 
tested. 

Thus,  for  judicial  purposes,  insanity  is  merely  a 
term  to  cover  a  certain  class  of  exceptions  from  the 
current  presumptions  as  to  persons  of  a  certain  age,  who 
are,  other  circumstances  being  favourable,  competent  to 
foresee  the  consequences  of  their  acts. 

It  may  be  indeed  that  the  person  whose  acts  are 
being  judicially  weighed  had  no  capacity  of  willing,  and 
so  the  alleged  act  was  only  an  event.  A  presumption  in 
favour  of  this,  operating  against  the  ordinary  presump- 
tion that  the  voluntary  muscles  are  moved  in  obedience 
to  the  will,  and  not  otherwise,  may  also  be  raised  by 
medical  evidence,  such  as  that  adduced  in  proof  of  iiisaoiiti/. 

According  to  this  view  of  the  matter,  which  wiU 
undoubtedly  be  found  to  be  the  true  one,  insanity,  as 
a  characteristic  and  well-ascertained  physical  condition, 
aifoi'ds  no  general  excuse  for  the  commission  of  crimes 
or  for  disobedience  to  law.  Its  actual  presence  in  any 
given  case  destroys,  modifies,  or  suspends,  the  general 
presumption  as  to  the  voluntariness  of  muscular  motions, 
or  as  to  the  intention  preceding  the  act.  It  may  even 
go  so  far  as,  under  the  general  aspects  of  the  case,  and 
in  conformity''  to  medical  experience,  to  raise  presump- 
r.ions  directly  the  reverse  of  those  customary  under 
conditions  of  health. 

But  the  utmost  that  general  medical  evidence  can  do 


DRUNKENNESS   AS  AFFECTING   IMPUTABILITY.        101) 

is  to  qualify  subsisting,  or  to  introduce  new,  classes  of 
presumptions.  The  circumstances  of  the  particular  case 
must  be  investigated  for  themselves,  in  the  light  of  the 
presumptions  finally  made,  and  the  particular  condition 
of  the  mind  of  the  actor  at  the  exact  moment  under 
consideration  must  be  keenly  scrutinized. 

English  law  supplies  an  exact  illustration  of  the  work- 
ing of  this  distinction  between  the  provinces  of  the  judge 
and  the  physician.  According  to  the  principles  of  this 
law,  no  amount  of  general  or  even  lifelong  insanity  can 
excuse  a  person  so  afflicted  from  having  a  crime,  alleged 
to  have  been  committed  by  him,  judicially  investigated 
just  as  if  he  were  sane ;  nor,  if  he  made  a  will  during  a 
lucid  interval,  would  his  constant  insanity  afford  a  con- 
clusive presumption  against  its  validity.  In  both  cases 
the  constant  persistence  of  the  disease  and  its  carefully 
recorded  general  effects  upon  the  mind  and  body  remove 
the  circumstances  from  among  those  to  which  alone  the 
current  presumptions  are  applicable,  and  even  raise  a 
presumption  unfavourable  to  the  supposition  of  mental 
restoration.  But  this  last  presumption  only  guides  a 
particular  investigation,  and  does  not  dispense  with  it. 

The  cases  of  drunkenness  and  of  that  violent  sort  of 
anger,  which,  in  some  of  its  aspects,  is  scarcely  distin- 
guishable from  insanity,  stand  on  peculiar  grounds  of 
their  own,  inasmuch  as,  thovigh  the  effect  on  intention, 
and  even  on  the  voluntariness  of  muscular  motion, 
resembles  that  resulting  from  insanity,  yet  they  are 
conditions  for  which  the  person  suffering  under  them  is 
directly  accountable.  These  states  are  the  immediate 
consequences  of  voluntary  indulgence,  and  these  conse- 
quences may  properly  be  assumed  to  be  foreseen.  Thus, 
strictly  speaking,  all  the  disastrous  results  that  often 
follow  from  indulgence  in  drink  or  in  unbridled  passion, 
are   properly   imputable  to   him  who   voluntarily   puts 


]  10       PRESUMPTIONS   IN   KESPECT   OF   "  IGNORANCE." 

himself  into   a   state   from   which  these  results  would 
possibly,  as  he  might  have  known,  spring. 

Nevertheless,  where  a  distinct  perception  of  the  nature 
and  immediate  consequences  of  an  act  forms  the  very- 
essence  of  its  legal  validity  or  imputability — as  in  the  case 
of  making  a  contract  or  a  will,  or  joining  in  a  conspiracy 
to  do  an  illegal  act — the  state  of  mind  implied  in 
drunkenness  and  in  excessive  passion  is  generally  held 
to  repel  the  presumptions  of  voluntariness  and  intention. 
In  other  cases,  again, — as  in  murder  and  robberies  with 
violence, — where  it  is  the  general  mental  condition,  rather 
than  a  clear  and  precise  conception  of  fine  results,  that 
gives  the  character  to  the  intention,  drunkenness  and 
passion  are  held,  it  is  true,  in  English  law,  to  afford  no 
excuse, — though,  in  fact,  they  often  operate  by  way  of 
mitigation  of  the  penalty,  through  the  intervention  either 
of  the  judge  or  of  the  Crown. 

There  are  other  great  classes  of  facts  which,  when 
they  are  present  under  special  circumstances,  are  uni- 
versally taken  into  account  by  courts  of  justice  as  quali- 
fying the  intention  of  persons  affected  by  them.  Such 
are  ignorance,  accident,  and  fraud.  The  general  sort  of 
ignorance  which  besets  every  one  during  the  first  years 
of  life  has  already  been  adverted  to.  But,  besides  this, 
there  is  what  may  be  called  a  special  sort  of  ignorance, 
which  is  liable  to  befall  every  one  in  respect  of  the  multi- 
tu  Unous  transactions  in  which  he  is  called  to  take 
his  share.  This  ignorance  may  be  of  the  most  varied 
sorts  and  degrees,  and  the  diffusion  and  multiplicity 
of  it  render  it  an  extremely  difficult  element  to  provide 
for  in  the  administration  of  justice. 

One  source  of  ignorance  is  what  has  sometimes  been 
called  "  rusticity,"  which  especially  befalls  the  poorer  and 
least  educated  section  of  the  community,  so  often  as  they 


CLASSIFICATION   OF   FORMS   OF   IGNORANCE.  Ill 

are  called  to  take  part  in  the  negotiations  of  civil  life. 
Some  particular  classes  of  persons,  such  as  soldiers  and 
sailors,  are,  from  their  occupations,  peculiarly  exposed 
to  ignorance  of  this  sort ;  and  some  systems  of  law,  in 
view  of  this,  have  directed  certain  special  presumptions 
to  be  made  in  their  favour. 

The  most  frequent  form  of  ignorance  that  may  be 
expected  to  present  itself  is  ignorance  of  the  state  of  the 
law.  This  ignorance  may  be  displayed  either  in  a 
general  want  of  acquaintance  with  the  rules  of  law,  or  in 
a  special  want  of  acquaintance  with  the  modes  in  which 
those  rules  operate  as  affecting  a  person's  own  rights 
and  duties.  Thus  a  person  may  either  not  know  that 
a  certain  rule  of  law  exists ;  or  he  may  not  know  that  he 
ought  to  do  certain  acts  which  the  law  commands  him  to 
do,  or  to  abstain  from  certain  acts  which  the  law  com- 
mands him  to  abstain  from.  This  difficulty  seems,  on 
the  face  of  it,  to  be  very  great,  and  it  is  likely  to  be 
increased,  by  the  impediments  to  the  providing  of  evi- 
dence as  to  the  actual  condition  of  a  person's  knowledge 
on  matters  so  intricate  as  laws,  rights,  and  duties.  If 
ignorance  of  the  law  were  readily  accepted  as  an  excuse 
for  disobedience  to  law,  it  would  seem  to  be  impossible 
to  close  the  innumerable  openings  thus  afforded  to  fraudu- 
lent impositions  on  courts  of  justice. 

The  practical  method  that  has  been  adopted  in  the 
most  celebrated  legal  systems,  in  order  to  obviate  this 
inconvenience,  is  the  following : — A  general  presumption 
is  made  that  every  one  is  acquainted  with  the  state 
of  the  law,  and  with  the  nature  and  extent  of  his  own 
rights  and  duties.  This  presumption  is  for  the  most  part 
not  allowed  to  be  rebutted,  though  the  injustice  that 
might  follow  from  an  unswerving  application  of  it  is 
partially  modified  by  certain  devices.  Thus  exceptional 
favour,  as  has  been  already  shown,  is  sometimes  accorded 


112    HOW   FAR  IGNORANCE  IS  TREATED   AS   EXCUSABLE. 

to  certain  classes  of  persons,  who,  from  their  special 
situation,  seem  to  need  the  peculiar  protection  of  law ; 
and,  just  as  the  consequences  of  their  general  ignorance 
are  indulgently  provided  against  on  the  principles  ah-eady 
stated,  so  these  same  principles  are  made  applicable  to 
their  ignorance  of  law.  To  these  classes  of  persons 
belong,  in  some  or  in  all  countries,  women,  the  young, 
soldiers,  and  sailors. 

Another  device  for  diminishing  the  harshness  of 
the  general  maxim,  that  every  one  knows  the  law,  is 
that  of  derogating  from  the  presumption  itself  in  cases 
where  the  principle  of  law  is  so  generally  understood 
throughout  the  community  that  ignorance  of  it  in  a 
special  case  leads  to  the  supposition  that  the  person 
establishing  his  ignorance  has  been  in  a  peculiarly 
unfavourable  situation,  or  has  been  subjected  to  mis- 
representation or  imposition  on  the  part  of  others,  and, 
on  either  ground,  deserves  extraordinary  indulgence. 

Lastly,  the  operation  of  the  maxim  may  be  con- 
trolled by  diminishing  or  wholly  relaxing  the  penalty 
which  the  breach  of  the  law  involves,  in  cases  where  the 
moral  culpability  seems  to  be  more  or  less  reduced  in 
amount  by  varying  degrees  of  ignorance  as  to  the  state  of 
the  law. 

There  is  a  third  class  of  occasions  in  which  ignorance 
of  facts  maj''  so  alter  a  person's  situation  that  he  may, 
for  certain  purposes,  be  vinable  to  form  that  accurate 
judgment,  as  to  the  immediate  consequences  of  his  acts, 
which  the  general  presumption  of  law  supposes  every  one 
capable  of  forming.  These  occasions  may  arise  from  the 
intervention  of  fortuitous  impediments,  or  of  the  inten- 
tional acts  of  other  persons;  in  other  words,  from  accident 
or  from  fraud. 

It  is  quite  possible  that,  though  a  person  has  eveiy 
reason  to  believe   certain   immediate   consequences   will 


IGNORANCE.  113 

follow  from  his  acts^  yet,  owing  to  the  operation  of  causes 
he  had  no  opportunity  of  taking  into  account,  these 
consequences  may  not  follow,  and  very  different  conse 
quences  may  follow  in  their  stead.  Thus  it  may  be 
that  a  person  gives  to  an  invalid  what  he  believes  to  be 
an  innocent  draught  of  medicine,  not  knowing  that  the 
bottle  he  takes  from  the  usual  place  had  been  changed 
by  some  one  else,  and  that  the  draught  he  actually  gives 
is  a  deleterious  mixture  or  a  dangerous  poison.  Or  a 
person  may  tear  up  a  document  which  he  erroneously 
supposes  to  be  an  insignificant  one,  or  the  copy  of  his 
will,  while,  owing  to  some  one  else  having  shifted  the 
position  of  his  papers,  what  he  really  tears  up  is  the 
original  will  itself,  and  consequently,  apart  from  special 
provision  for  his  case,  he  dies  intestate. 

For  these  cases  of  ignorance,  as  affecting  intention, 
it  is  less  difiicult  to  provide  a  remedy  than  for  those 
previously  considered.  In  the  case  of  those  the  igno- 
rance attached  to  widespread  classes  of  society,  and 
there  was  a  danger  lest,  in  showing  promiscuous  indul- 
gence to  every  alleged  case  of  ignorance,  general  anarchy 
might  result.  In  the  case,  however,  of  ignorance  brought 
about  by  special  accidents,  these  must  always  be  rave 
and  exceptional,  and  no  harm  can  follow  from  makjing 
the  s})ecial  relief  no  more  than  exactly  co-extensive  with 
the  need. 

Thus,  according  to  English  law,  as  applied  to  the 
above  selected  illustration,  if  the  person  giving  the 
draught  which  causes  the  death  of  another  had  no 
knowledge  that  the  probable  immediate  consequence 
of  giving  it  would  either  he  the  death  of  the  other 
person,  or  would  be  the  introduction  of  a  train  of  causes 
which  would  result  in  that  death,  he  would  be  exempt 
from  all  liability.  The  question  of  possible  negligence, 
which  perhaps  might  be  involved,  will  come  under  con- 


114  FRAUD. 

sideration  lower  down.  In  the  other  illustrative  case 
an  eftectual  remedy  would  be  given  by  allowing  evidence 
of  the  contents  of  the  destroyed  will  to  be  produced 
from  other  quarters.  This  was  allowed  at  Rome,  as  it 
is  in  England. 

The  most  important  cause,  however,  of  dislocated 
intention  is  that  sort  of  wilful  interference  on  the  part 
of  others  which  is  styled  fraud.  The  essence  of  fraud 
is  that  one  person  induces  another  to  do  an  act  under 
the  supposition  that  its  immediate  consequences  will 
be  of  a  sort  he  would  either  desire  or  not  object  to, 
while,  owing  to  some  deception  practised  upon  the 
actor,  the  real  consequences  are  of  a  kind  probably 
beneficial,  indeed,  to  the  person  perpetrating  the  fraud, 
but  either  the  reverse  of  beneficial  to,  or,  at  least,  of  a 
nature  wholly  unexpected  by,  the  person  who  is  the 
victim  of  it. 

This  is  the  simplest  and  most  elementary  form 
of  fraud,  though  its  actual  forms  are  of  -almost  infinite 
diversity.  They  will  all,  however,  be  found  in  some 
way  or  other  to  trifle  with  the  intention  of  the  person 
upon  whom  they  are  practised.  He  is  induced  to 
do  an  act,  or  to  assent  to  another  person's  doing  an 
act,  the  consequences  of  which  he  thinks  he  distinctly 
foresees,  but  owing  to  some  trick  jDractised  upon  him — 
whether  by  verbal  misrepresentation ;  by  the  secret  sub- 
stitution of  one  document  for  another ;  by  the  writing 
of  the  name  of  a  non-existent  person  as  though  he 
were  existent ;  by  the  imitation  of  another's  handwriting ; 
or  by  the  mere  suppression  of  material  facts — the  con- 
sequences he  anticipates  do  not  follow.  He  has  acted 
in  ignorance,  and  therefore  his  act  was  not  intentional. 

A  test  of  the  vigour  and  vitality  of  a  legal  system  is 
the  measure  of  its  success  in  providing  a  remedy  for  the 
wrong  and  suffering  caused  by  fraud.     In  a  very  early 


NEGLIGENCE.  115 

state  of  society,  the  main  violations  of  social  order  are 
effected  throngh  overt  assaults  upon  that  order,  rather 
than  through  the  silent  and  insidious  instrumentality  of 
fraud.  It  also  happens  that,  in  the  early  social  condition, 
the  attention  of  law-makers  and  judges  is  directed  far 
more  to  outward  and  visible  acts  than  to  those  mental 
phenomena  which  have  been  gathered  up  under  the  term 
intention.  Thus,  just  as  frauds  begin  to  get  frequent, 
the  improved  instrumentality  in  the  hands  of  judges 
is  ready  for  the  discouragement  of  those  frauds. 

The  Prsetor  at  Rome  and  the  Chancellor  in  England 
have  been  the  main  judicial  organs  in  the  two  countries  by 
whom,  as  it  were,  a  special  faculty  has  been  elaborated 
for  the  sole  purpose  of  disappointing  the  machinations  of 
fraud.  The  devices  of  fraud,  however,  contrive  to  keep 
pace  with  the  means  employed  for  thwarting  them,  and 
the  enormous  growth  of  one  large  part  of  the  law  is 
determined  by  nothing  else  than  by  the  ever  new  and 
unexpected  manifestations  of  forms  of  eluding  both  the 
clearest  langTiage  of  the  law  and  the  most  vigilant  watch 
kept  by  those  w^ho  administer  it. 

In  speaking  of  intention,  it  is  necessary  to  notice 
that  intention  itself — that  is,  the  attitude  of  the  mind 
in  view  of  the  immediate  consequences  of  acts — is  subject 
to  a  certain  amount  of  legal  control.  Law  prescribes 
in  all  countries,  a  certain  Tninimum  of  mental  alacrity 
and  assiduity  to  be  exhibited  by  aU  persons  in  the 
community  under  various  circumstances ;  and  for  some 
jjersons,  under  some  circumstances,  prescribes  a  special 
amount  of  such  alacrity  and  assiduity,  very  far  exceed- 
ing the  minivium.  Such  a  j)rescription  is  absolutely 
needed  in  order  to  secure  the  common  advantages  of  civil 
intercourse  ;  for,  in  default  of  such  a  prescription,  every 
one's  personal   security,  reputation,    and    health    would 


116  NEGLIGENCE. 

be  at  the  mercy  of  every  other  person  who  might  choose 
to  indulge  himself  in  thoughtless  and  reckless  intrusion 
upon  his  neighbours. 

Thus,  in  each  condition  and  situation  of  life,  law 
supposes  that  every  subject  of  the  State  will  watch 
carefully  that  his  acts  do  not  interfere  with  the  enjoy- 
ment of  rights  which,  in  that  condition  and  situation, 
are  vested  in  others.  The  amount  of  watchfulness  that 
is  needed  will  be  determined  by  the  extent  of  the  right 
under  the  particular  circumstances.  But,  whatever  the 
extent  of  the  right,  the  violator  of  it  will  not  only  be 
responsible  for  his  act  in  cases  where  he  took  no  care 
at  all  to  prevent  the  injury,  but  also  in  cases  where  he 
did  not  take  all  the  care  exactly  defined  by  law  as 
needed  to  be  shown  under  the  circumstances. 

The  absence  of  this  variable  amount  of  care,  '  so 
demanded  by  law,  is  called  negligence.  The  presence  of 
it  is  styled  diligence.  In  all  systems  of  law  the  amount 
of  diligence  required  under  different  circumstances  must 
vary  extremely  ;  and  it  will,  in  fact,  be  exactly  measured 
by  the  extent  of  the  rights  of  the  person  towards  whom 
it  has  to  be  exhibited.  A  person,  for  instance,  has  a 
larger  right  to  personal  security  in  circumstances  in 
which  the  law  leads  him  to  expect  the  presence  of 
greater  appliances  for  his  protection.  Thus,  furious 
di'iving  wovild  be  forbidden  in  a  metropolis,  but  perhaps 
allowable  in  a  country  lane.  A  person  equally  injured 
would  have  a  remedy  on  the  ground  of  negligence  in  the 
former  case,  but  might  not  have  it  in  the  latter. 


CHAPTER  VIL 

LAW  IN  EELATION  TO  (1)  THE  STATE,  (2)  THE  FAT\rrLY, 
(3)   THE   OTHER   CONSTITUENT   ELEMENTS    OF   THE   STATE. 

Hitherto  the  subject-matter  with  which  law  is  conver- 
sant has  only  been  incidentally  alluded  to  in  order  to 
assist  the  inquiry  into  the  true  nature  of  law,  and  to 
explain  the  circumstances  under  which  it  becomes  fully 
developed  in  a  community.  It  is  now  time  to  map  out 
with  precision  the  department  which  law  occupies  in  the 
organization  of  a  State,  and  to  review  the  general  classes 
of  objects  which  a  legislator  proposes  to  himself  in  the 
enactment  of  laws. 

These  objects  may  be  described,  in  general  terms, 
as  twofold :  the  conservation  of  the  State,  and  the  ade- 
quate accomplishment  of  the  purposes  for  which  it 
exists.  The  first  class  of  these  objects  may  be  said  to  be 
"  statical,"  and  the  second,  "  djmamical."  The  former  are, 
in  kind  or  quality,  the  same  for  the  State  at  every  period 
of  its  existence,  while  the  latter  undergo  incessant  varia- 
tions, of  which  the  limit  can  hardly  be,  at  present,  con- 
jectured. Not,  indeed,  that  it  is  always  possible  to  draw 
a  sharp  line  between  the  forces  which  conduce  to  keep  a 
State  in  existence  and  those  which  promote  its  ulterior 
progress ;  inasmuch  as  a  condition  of  stagnation  is  nearly 
akin  to  one  of  decay,  and  there  is  reason  to  believe  that, 
in  politics  at  least,  not  to  go  forward  is  to  go  backward. 

Nevertheless,  it  will  appear  that  in  every  State  there 


118  LAW   IN   RELATION   TO   THE   STATE. 

are  some  institutions  and  conditions  which  are  perma- 
nent and  essential,  while  others  seem  to  take  a  variety 
of  forms  and  colours  at  different  stages  of  political 
advancement,  and,  in  some  measure,  to  determine  the 
rate  of  that  advancement.  It  is  thus  a  natural  and 
convenient  mode  of  distributing  the  purposes  of  laws, 
to  denominate  one  class  as  "  statical "  and  the  other  as 
"  dynamical" 

The  value  of  an  inquiry  into  the  purposes  of  law,  as  con- 
ducive to  the  maintenance  and  the  progress  of  the  "State," 
must  depend  upon  an  accurate  notion  being  obtained  of 
what  the  term  State  denotes.  This  term  is  so  largely 
employed  in  popular  conversation  and  loose  political 
discussion  that  it  has  contracted,  like  most  other  leading 
political  terms,  an  indecision  and  ambiguity  of  meaning 
from  which  it  is  next  to  impossible  to  liberate  it. 

Thus,  at  one  time,  and  for  one  class  of  debaters, 
the  State  is  nothing  more  than  the  "supreme  political 
authority,"  or  the  legislature,  of  the  nation.  At  another 
time,  and  for  another  class  of  debaters,  the  State 
is  the  Executive,  or  the  "  Government "  in  the  English 
sense,  that  is,  the  persons  selected  from  the  preponder- 
ant political  party  of  the  day  to  discharge  the  executive 
functions  of  the  Crown.  Sometimes,  again,  the  State 
means  nothing  more  than  the  nation,  or  the  aggregate 
body  of  persons  connected  together  by  certain  common 
ties  of  blood,  of  language,  of  historical  vicissitudes, 
or  of  territorial  habitation.  Lastly,  the  State  sometimes 
means  the  ever-renewed  population  of  a  country,  as 
contrasted  with  their  Government  at  any  particular  time. 

Now,  though,  provided  the  persons  who  use  the  term 
State  in  any  of  these  senses  are  consistent  in  their  use  of 
it,  it  is  not  possible  to  say  that  any  of  these  uses  are 
wrong,  it  may  yet  be  said  that  some  of  these  meanings 
are  more  convenient  to  adhere  to  than  others,  and  that 


ANALYSIS  OF  THE  MEANING  OF  THE  TERM  "STATE."      119 

the  best  meaning  that  could  be  put  upon  the  term  would 
be  that  which  reflected  as  many,  and  lost  as  few,  of  the 
popular  meanings  as  possible.  In  order  to  reach  such  a 
meaning,  the  radical  conception  which  underlies  most  of 
the  uses  of  the  word  State  must  be  further  investigated. 

It  is  a  conclusion  based  upon  the  results  of  experience 
and  observation,  as  illustrated  by  the  application  of  strict 
deductive  reasoning,  founded  on  truths  universally 
acknowledged,  that  the  social  development  of  mankind 
can  only  proceed  through  the  multiplication  of  groups 
and  through  unity  of  contribution. 

In  other  words,  humanity  is  threatened  by  two 
hostile  tendencies,  one  of  which  prevents  its  initial 
growth  out  of  animalism,  and  the  other  thrusts  it  back 
into  animalism  again.  The  first  tendency  is  that  ex- 
pressed in  barbarism,  which  is  a  multiplication  of  small 
groups  without  contribution.  The  second  tendency  may 
be  designated,  for  the  sake  of  brevity,  as  imperialism, 
which  implies  an  intense  unity  of  contribution,  but  an 
annihilation  of  independent  groups. 

Where  either  of  these  tendencies  prevails,  the  chief 
faculties  of  man's  nature  are  stunted  in  their  growth  or 
rendered  abortive.  It  is  obvious  that  this  must  be  so. 
All  man's  wannest  and  most  active  emotions  must  be 
called  into  exercise  by  that  which  is  near  at  hand,  and 
present  to  his  senses  and  to  his  constant  thought.  At  the 
same  time  he  needs  the  utmost  variety  of  object,  of 
situation,  and  of  opportunity,  to  stimulate  and  call  into 
existence  his  manifold  faculties  of  thought,  feeling,  and 
action.  This  proximity  and  variety  in  the  objects  which 
solicit  the  affections,  and  impel  to  action,  is  supplied  by 
what  has  above  been  called  the  multiplication  of  groups. 
These  groups  may  be  larger  or  smaller,  and  according  to 
their  magnitude  and  to  the  closeness  of  their  coherence 
will  the  advantages  here  indicated  be  attained. 


120        LAW  IN  RELATION  TO  THE  STATE, 

In  the  most  barbarous  condition  of  society  possible, 
the  family,  however  strangely  constituted,  is  always 
tending  to  form  the  basis  of  a  true  national  group- 
ing ;  while  the  associations  for  warlike  purposes,  how- 
ever desultory,  have  a  similar  tendency  of  a  more 
artificial  kind.  The  feebleness,  however,  in  the  consti- 
tution of  society  at  this  stage,  is  due  to  the  narrow^iess 
of  the  area  in  point  of  space,  and  to  the  limitation  of 
vision  in  point  of  time,  by  which  the  activity  of  the  indi- 
vidual members  of  the  community  is  restricted.  In  this 
sort  of  society  there  can  be  no  eflTective  solicitude  for 
the  welfare  of  families  beyond  the  immediate  neigh- 
bourhood; no  distinct  concern  for  the  fortunes  of  the 
next  generation,  and,  still  less,  of  posterity ;  no  conscious 
identification  of  the  present  with  the  past  and  the  future 
life  of  the  community,  and,  thereby,  no  prevalent  sen- 
timent of  the  duty  of  self-sacrifice  for  principles  not 
immediately  connected  with  obvious  facts. 

The  best  description  that  can  be  given  of  the  State,  in 
its  innermost  conception,  is  that  it  is  the  living  and 
actual  exponent  of  a  condition  of  society  in  which  all  the 
elements  needed  to  supplement  the  organization  of  a 
barbaric  community,  as  above  sketched,  are -supplied. 

Where  there  is  a  State,  the  groups  indeed  remain  the 
same  as  before,  with  all  their  independent  energy, 
activity,  and  capacity  for  mutual  inter-action;  but,  in 
the  place  of  waste  and  abortiveness,  they  all  contribute 
(however  tentatively  at  first)  to  the  accomplishment  of  a 
common  aim,  and  to  the  general  support  of  a  rich,  because 
common,  life.  The  common  aim  and  life  is  not  merely 
ideal  and  delusive,  but  that  which  intimately  concerns 
the  well-being  of  eveiy  atomic  member  of  the  community. 

A  new  and  vast,  though  silently  operating,  educational 
process  takes  place  throughout  the  whole  people.  The 
records  of  the  past  begin  to  be  gathered  up  and  treasured ; 


HISTORICAL   DEVELOPMENT   OF  THE   STATE.  121 

the  opinion  of  posterity  becomes  an  incitement  or  a 
warning;  a  sentiment  of  willingness  to  give  up  individual 
life  itself  in  defence  of  the  integrity  of  the  national  life 
becomes  predominant  over  all  poorer  and  more  selfish 
inclinations  ;  and  feelings  of  national  pride  and  brother- 
hood,— ^and,  at  first,  of  rivalry  or  antipathy  towards  all 
other  communities  similarly  situated, — become  insepar- 
able elements  of  the  national  consciousness. 

The  State  is  then  completely  formed.  What  are  the 
forces  that  have  formed  it  in  any  given  case — or  that  form 
it  in  all  cases — may  furnish  occasion  for  endless  debate. 
It  may  be  the  cogent  necessities  of  defence  against  a 
foreign  foe ;  it  may  be  the  accidental  introduction  of  a 
new  form  of  religious  worship ;  it  may  be  the  appearance 
of  a  gifted  statesman  or  poet,  or  the  introduction  of  a 
body  of  foreign  laws.  Whatever  the  originating  cause, 
the  final  results  are  much  the  same.  The  world  is  the 
gainer  by  a  new  centre  of  civilization  and  progress  ;  that 
is,  by  the  birth  of  a  new  State. 

It  is  easy  to  see  that  the  efiect  of  what  has  been 
called  Imperialism — or  the  extension  of  the  physical 
power  of  a  single  dynasty  over  an  extent  of  territory, 
limited  only  by  physical  obstacles,  and  not  by  the  moral 
demands  of  the  subjected  population — is  the  reversal 
of  this  process.  It  is  the  negation  of  the  true  State ; 
the  result  being  the  paralysis  of  all  the  independent 
groups,  coupled  with  the  necessity  of  forcible  contri- 
bution towards  the  material  support  of  the  tyrannical 
dominion.  In  this  way,  again,  all  care  for  the  future,  all 
self-identification  with  the  prosperity  of  a  corporate 
whole,  all  thought  of  the  past,  all  pride  in  national  suc- 
cesses, all  spirit  of  brotherhood,  gradually  die  out.  Each 
part  of  the  empire  is  vicariously  tyrannized  over  by  the 
deputies  of  the  Sovereign,  and  corruption  of  every  sort 
eats   deeply  into  the  vitals   of   the   whole   community. 


122  LAW   IN    RELATION   TO   TIIL   STATE. 

History  and  existing  facts  combine  to  testify  to  tlie 
truthfulness  of  the  picture. 

It  is  to  be  noticed  that  in  every  nation,  at  each 
moment  of  its  history,  the  practical  problem  of  preserving 
the  State  and  resisting  its  annihilation  throuo^h  "over- 
government "  has  to  be  encountered.  Every  law  that  is 
made  should  tend  to  effect  one  or  other  of  these  objects, 
and  therefore  it  is  of  the  utmost  consecjuence  to  ascertain 
what  are  the  essential  elements  in  the  true  State,  the 
preservation  and  development  of  which  it  should  be  the 
aim  of  all  laws  to  favour  and  not  to  impede. 

The  two  main  ingredients  introduced  into  barbaric 
society  by  the  conception  of  the  State  may  be  said  to  be 
organization  and  government.  Organization  implies  a 
relation  on  the  part  of  each  constituent  group  (or  com- 
ponent element  of  the  community)  with  every  othei* 
group  and  with  the  whole,  as  an  integral  body.  This 
relation  is  of  such  a  nature  that  each  group  contributes 
to  the  efficiency  of  every  other  group  and  of  the  whole ; 
and  the  whole,  strengthened  by  such  general  contri- 
bution, increases  the  efficiency  of  every  separate  group. 
Crovernment  implies  the  conscious  superintendence  of  the 
fortunes  of  the  community,  both  present  and  future, 
and  involves  the  manipulation  of  the  physical  strength 
latent  in  all  parts  of  the  community,  for  the  purposes 
both  of  controlling  recalcitrant  members  of  the  com- 
munity, and  of  protecting  the  community  from  assailants 
from  without.  The  main  instrumentality  by  which 
Government  operates  is  lata,  or  bodies  of  general  rules 
declaring  the  acts  which  members  of  the  community  are  to 
do  and  not  to  do  in  order  to  facilitate  the  accomplishment 
of  the  general  pui^DOses  for  which  the  Government  exists. 

It  has  thus  appeared  that  the  State  is  an  aggregate 
portion  of  the  human  race,  preserving  its  ideal  integrity 
inviolate  in  spite  of  the  death  of  successive  generations 


FUNCTIONS   OF  THE   STATE.  123 

of  the  actual  representatives  of  it  from  time  to  time ;  of 
dimensions  suitable  to  the  fullest  possible  development 
of  the  resources  of  human  nature ;  and  having  its  modes 
of  occasional  action  determined  by  "  Government."  It  is 
then  tlie  preservation  and  development  of  this  entirety, 
the  "  State,"  that  is  the  purpose  of  law  as  a  subordinate 
agency  of  Government,  and  it  remains  to  consider  what 
are  the  distinct  objects  to  which,  in  pursuit  of  this 
general  purpose,  laws  are,  and  must  be,  addressed.  It  is 
to  be  borne  in  mind,  in  the  course  of  the  inquiry,  that  the 
province  of  law  in  this  matter  is  severely  limited, — fii-st, 
because  Government  is  by  no  means  the  only,  or  even  the 
chief,  agency  employed  for  the  development  of  the  State ; 
and,  secondly,  because  law  is  only  one  out  of  a  variety  of 
means  employed  by  the  supreme  political  authority  in 
carrying  out  the  ends  of  Government. 

The  primary  object,  then,  which  law  has  to  keep  in 
view,  is  the  support  of  the  integrity  of  those  original 
groups  on  the  continued  vitality  of  which,  as  has  been 
seen,  the  whole  structure  of  the  society  depends.  These 
groups  are  such  as  families,  villages,  towns,  parishes,  and 
the  like,  according  to  the  situation  or  ethical  peculiarities 
of  the  particular  country  under  consideration. 

The  preservation  and  description  of  the  Family  as  an 
integral  atomic  group,  out  of  an  assemblage  of  which 
groups  the  State  is  formed,  is  one  of  the  most  momentous 
of  the  objects  on  behalf  of  which  laws  exist.  Even  in 
conditions  of  society  a  long  way  removed,  as  yet,  from 
the  era  of  the  foundation  of  the  true  State,  marriage 
(however  strangely  diversified  in  its  circumstances)  is 
fenced  about  by  customs  as  rigid  and  tenacious  as  the 
most  mature  laws.  The  true  nature  of  the  family  group, 
and  the  amount  of  interference  with  the  process  of  its 
spontaneous  construction  which  laAV  may  proj)erly  exert, 
present  problems  which  can  only  be  satisfactorily  solved 


124       LAW  IN  RELATION  TO  THE  FAMILY. 

by  experience,  and  in  the  attempted  solution  of  which  Ifc 
is  likely  that  the  most  unhappy  mistakes  will  h>ng  be 
persisted  in.  These  problems  are  of  the  following  sorts — 
tirst,  as  to  the  conditions  and  forms  of  marriage,  and  the 
possibility  and  conditions  of  divorce ;  secondly,  as  to 
the  extent  and  comprehensiveness  of  the  family  group ; 
thirdly,  as  to  the  amount  of  interference  justifiable  on 
the  part  of  the  State  with  the  independent  activity  of  the 
constituent  members  of  the  family. 

Fii-st,  as  to  the  conditions  and  forms  of  Marriage,  it  is 
to  be  remembered  that  the  purpose  of  law  is  not  to  con- 
stitute those  groups,  from  the  multiplication  and  organ- 
ization of  which  the  State  derives  its  existence ;  but  to 
define  the  limits  of  them,  and  to  ascertain  their  relations 
to  one  another,  as  well  as  to  contribute  to  their  stability. 
In  respect  of  the  constitution  of  the  State,  marriage  must 
be  viewed  as  an  act  which  determines  the  creation  of  a 
new  famil}^  group,  and  from  which  act  a  number  of  rela- 
tions, actual  and  possible,  moral  and  legal,  spring ; 
relations  which,  taken  in  their  aggregate,  constitute 
marriage  as  a  status.  It  is  obvious  that  the  deteimination 
of  the  moment  at  which  a  new  family  group  takes  its 
rise  is  of  the  utmost  concern  to  the  State ;  and,  further- 
more, the  importance  of  keeping  distinct  from  one 
another  the  different  groups  is  of  scarcely  inferior  concern. 
It  is  in  view  of  this  last  object  that  rules  for  the 
prevention  of  intermarriages  between  blood  relations 
and  certain  others,  based  as  they  often  are,  at  first, 
upon  cm-ious  superstitions  or  questionable  physiological 
theories,  are  finally  adopted  and  enforced  by  law. 

With  respect  to  the  form  of  the  marriage,  the  two 
main  considerations  must  be  certainty  and  publicity ; 
though,  even  to  the  partial  sacrifice  of  these  considera- 
tions, it  is  often  held  expedient  for  law  to  recognize  the 
forms    of  marriage   already    spontaneously  adopted    by 


MARRIAGE   AND  DIVORCE.  125 

custom.  Nevertheless,  the  tendency  in  all  advancing 
nations  is  to  secure  certainty  and  publicity  by  better 
guarantees  than  those  afforded  by  popular  practices,  and 
thus  the  anomaly  is  often  presented  of  two  sorts  of 
man^iage  ceremony  co-existing  in  the  same  State, — the 
one  reflecting  and  preserving  the  ancient  usages  of  the 
people ;  the  other,  the  creation  of  positive  law  as  based 
vipon  carefully  weighed  considerations  of  public  conveni- 
ence. 

The  question  of  Divorce  is  perhaps  the  one  which  the 
conscious  lawgiver  encounters  with  the  greatest  reluc- 
tance, inasmuch  as  the  arguments  which  carry  weight  with 
himself  are  peculiarly  liable  to  misapprehension  by  the 
people  generally,  and  are,  indeed,  from  their  nature,  hard 
to  state  in  a  strictly  theoretical  form.  To  grant  in- 
definite facility  for  divorce  seems  to  deny  the  indissolu- 
bility of  marriage,  and  to  that  extent  to  menace  the 
integrity  and  permanence  of  every  family  group,  thereby 
seriously  affecting  the  interests  of  all  the  constituent 
members  of  the  family,  and  so  far  impairing,  as  has  been 
seen,  the  essential  structure  of  the  State  itself.  To  grant 
a  divorce  in  no  case  whatever,  on  the  other  hand,  leads  to 
the  consequence,  in  numberless  cases — few  though  they 
be  in  comparison  with  the  remaining  cases  of  marriage — 
of  bringing  irreparable  suffering  upon  innocent  persons, 
and,  indeed,  of  favouring  the  growth  of  another  set  of 
fresh  family  groups  wholly  beyond  the  recognition  and 
protection  of  law.  To  grant  a  certain,  but  not  an  exces- 
sive, amount  of  facility  for  divorce,  again,  is  likely  to 
lead  to  a  number  of  frauds  upon  public  justice,  to  investi- 
gations in  a  high  degree  detrimental  to  public  manners 
and  morals,  and  to  the  concession  of  a  discretionary 
faculty  to  judges  which,  in  some  states  of  society,  might 
be  fraught  with  the  utmost  dano-er. 

Such  are  the  problems  before  the  legislator,  in  the 
1 


126  LAW  IN   RELATION   TO  THE  FAMILY. 

matter  of  divorce,  stated  in  their  most  general  form. 
The  actual  aspect  of  those  problems  in  any  given  epoch  in 
a  given  country  will  depend  upon  the  traditions  and 
habits  of  the  country,  the  existing  standard  of  public 
morality,  and  the  prevalent  character  of  the  judges.  The 
solution  belongs  rather  to  the  statesman  than  to  the 
scientific  theorist,  though  the  latter  may  usefully  remind 
the  former  how  much  of  the  question  belongs  to  the 
region  of  law  and  how  much  to  that  of  morality. 

As  to  the  rights  and  duties  of  the  husband  and  wife 
in  respect  of  each  other  and  of  the  children  of  the 
marriasje,  one  main  consideration  underlies  all  the  rest ; 
that  is,  the  attitude  of  preponderance  or  of  equality 
which  the  husband  and  wife  shall  assume  in  respect  of 
one  another.  The  matter,  indeed,  is  closely  connected  with 
the  larger  one  as  to  the  legal  relations  of  men  and  women 
throughout  the  community  in  respect  of  ownership,  in- 
dustrial and  professional  occupations,  and  political  rights. 
The  principles  upon  which  these  legal  relations  in  all 
States  are  or  may  be  determined  may  conveniently  be 
considered  in  this  place. 

It  is  admitted  by  reasonable  disputants  on  both  sides 
of  the  controversy  with  respect  to  the  relative  legal 
claims  of  men  and  women  that,  whatever  may  be  the 
case  in  primitive  times  before  the  foundation  of  the  true 
State,  the  whole  tendency  of  civilization  is  to  place  man 
or  woman,  for  all  purposes  of  moral  and  social  advantage, 
on  an  exactly  equal  footing.  The  excessive  division  of 
labour,  the  diffusion  of  education,  the  prevalent  doctrines 
of  personal  liberty  and  of  the  dignity  of  the  human 
being,  as  well  as  the  vicissitudes  of  wealth  and  poverty, 
all  tend  to  render  impossible  a  condition  of  society  in 
which  all  men  have  fixed  and  permanent  advantages, 
physical,  moral,  and  social,  over  all  women.  This  is  so 
transjiarent,  that  the  argument  in  favour  of  different  laws 


RELATIVE   CLAIMS   OF   MEN   AND   OF   WOMEN,         127 

for  men  and  for  women,  based  upon  any  imagined 
inferiority  of  position  or  of  moral  claim  on  the  part  of 
women,  is  now  nearly  deserted  in  favour  of  one  far  more 
plausible  and  far  better  adapted  to  the  actual  facts  of 
modern  society. 

It  is  said  that  though  there  is  no  imaginable  inequality 
between  men  and  women  in  respect  either  of  moral 
dignity  or  of  legal  claim,  yet  the  differences  between 
men  and  women  are  so  wide-reaching  and  radical,  that 
all  hope  of  assimilation  of  laws  affecting  the  two  must  be 
delusive,  as  any  attempted  assimilation  could  only  be 
pernicious.  The  premises  of  this  argument  wordd  appear 
to  be  true,  though  not  wholly  in  the  way  implied  by 
the  arguers,  but  the  conclusion  based  upon  them  certainly 
does  not  properly  follow. 

To  one  casting  an  eye  on  the  continuous  history  of  a 
political  society,  the  following  is  the  sort  of  panorama 
that  would  be  exhibited  in  the  matter  now  under  con- 
sideration. 

The  first  stage  of  society  would  exhibit  women  as 
being  of  little  account,  except  for  their  obvious  services 
in  contributing  to  maintain  the  existence  of  the  society, 
and  in  ministering  to  the  physical  needs  of  the  men, 
whose  prowess  in  the  field  defends  the  nascent  society 
against  its  assailants. 

The  second  stage  would  exhibit  men  and  women  co- 
operating together  in  providing  for  the  necessities  of  the 
whole  community,  the  strength  and  prowess  of  the  men 
being  of  little  more  account  and  little  more  in  demand 
than  the  patience  and  acuteness  of  vision  found  among 
the  women.  Nevertheless,  the  memory  of  the  former 
stage  would  not  have  faded  away,  while  the  actual  and 
necessary  peculiarity  of  some  part  of  the  duties  and 
occupations  of  many  women  would  tend  to  prop  up  the 
notion  that  women  existed,  not  as  integral  elements  of 


128  LAW   IN   RELATION  TO   THE   FAMILY. 

the  whole  society,  but  as  subordinate  ministers  to  the 
well-being  of  men. 

A  third  stage  of  society,  however,  presents  a  new 
scene.  The  idea  has  gained  ground  that  the  life  and 
success  of  the  whole  community  depend  neither  upon 
an  equality  in  its  integral  elements  nor  upon  the 
subordination  of  some  to  the  rest.  This  idea  expresses 
itself  in  a  variety  of  forms  in  the  case  of  men.  All 
permanent  restrictions  which  have  hampered  the  develop- 
ment of  individual  men  are  gradually  abolished  as 
anachronisms.  Political  rights,  once  the  privileges  of  a 
few,  become  the  common  inheritance  of  all.  Monopolies 
are  discarded,  and  the  only  obstacles  to  general  emanci- 
pation and  free  self-enrichment  which  remain  are  those 
held  to  be  implied  in  the  constitution  of' society  itself, 
and  are  not  the  creation  of  theories  of  natural  inequali- 
ties between  man  and  man. 

But  the  vitality  of  the  same  idea  is  found  to  extend 
itself  to  women  in  their  relation  to  men.  Here  too 
there  may  be,  and  are,  differences  fixed  by  nature,  and 
which  laws  can  neither  make  nor  change.  On  inquiry, 
however,  it  is  found  that  laws  have  been  made  not 
merely  to  maintain  these  differences  (for  if  the  differ- 
ences were  natural  and  immutable  they  needed  no  such 
factitious  support),  but  to  aggravate  and  to  extend  them. 
It  becomes  obvious  that  women  have  suffered  even 
more  than  men  from  the  domination  of  monopolies, 
exclusive  theories,  and  tyrannical  usurpation. 

The  true  differences  between  men  and  women  are 
indeed  more  marked  and  peculiar  than  those  between 
men  and  men,  and  advantage  has  been  taken  of  this  to 
exaggerate  aU  the  evils  which  inequality  has  inflicted  on 
men.  But  if  the  usurpation  has  been  grosser,  the  social 
loss  to  the  State  has  been  greater.  It  is  these  very 
differences  which,  when  properly  developed,  become  the 


LEGAL   RELATIONS   OF  MEN   AND   WOMEN,  129 

source  of  all  the  fine  reactions  and  reciprocal  emotions 
which  supply  the  main  energy  of  the  State's  life.  These 
differences  can  only  be  expressed  in  their  fall  natural 
strength  and  exuberance  under  conditions  of  perfect 
freedom.  Any  attempt  to  force  is  as  vicious  as  an 
attempt  to  cram]) ;  and,  in  fact,  the  one  has  the  same 
result  as  the  other. 

It  thus  comes  about  that,  if  modem  States  are  to 
proceed  to  the  next  onward  stage,  the  differences  between 
men  and  women,  whatever  their  kind  and  amount,  must 
be  left  to  exhibit  themselves  spontaneously,  without 
being  fostered,  and  so  thwarted,  by  ignorant  legislators. 
The  same  course  of  legislation  must  be  pursued  with 
respect  to  the  abolition  of  legal  distinctions  between  men 
and  women  as  between  men  and  men.  This  is  not  a 
question  of  policy,  but  of  moral  necessity,  and  it  will 
sooner  or  later  be  recognized  to  be  so. 

The  second  class  of  problems  which  it  was  said  lie 
before  the  legislator  with  respect  to  the  maintenance 
of  the  family  group,  is  that  concerned  with  the  extent 
of  that  group.  The  problem  is  at  this  day  a  far  easier 
one  than  in  past  times,  owing  to  the  operation  of  the 
class  of  facts  which  have  just  been  adverted  to.  In 
England  and  in  the  United  States,  marriage,  divorce, 
and  guardianship  are  the  only  topics  with  which  law, 
as  supporting  the  integrity  of  the  family  group,  is  con- 
cerned. But  in  ancient  Rome,  and,  to  a  certain  extent, 
in  the  continental  countries  which  have  based  their  laws 
on  the  Roman  and  the  Canon  law,  the  "  family  "  appears 
as  a  small  society,  every  member  of  which  has  his  place 
assigned  by  law,  and  his  rights  and  duties  in  respect 
of  every  other  member  carefully  determined. 

In  the  Roman  law,  again,  the  slave  was  also  a' 
member  of  the  family  gi'oup,  and,  in  fact,  the  natural 
conception  of  the   family,  as  based  upon  marriage  and 


130       LAW  IN  RELATION  TO  THE  FAMILY. 

blood  relationship,  gave  place,  for  a  time,  to  a  secondary 
conception  of  the  family,  according  to  which  the  children 
of  the  married  persons  ceased  to  belong  to  the  family 
by  "emancipation,"  and  the  children  of  other  persons 
became  members  of  the  family  by  "  adoption." 

The  history  of  these  usages  is  a  curious  illustration 
of  the  dominion  that  legal  conceptions  can  obtain  over 
even  the  most  fixed  and  powerful  of  all  associations  of 
thought ;  while  the  gi'adual  decline  of  them,  fii'st  under 
the  jurisdiction  of  the  praetors,  and  then,  under  the 
legislation  of  the  emperors,  points  out  how  enduring  is 
the  conception  of  the  natural  family,  as  the  integi-al 
group  out  of  which  the  State  grows,  even  in  the  face  of 
the  dominant  conceptions  of  law.  The  "  Patria  Potestas  " 
in  Roman  law,  surviving  to  some  extent  on  the  continent 
at  this  day,  affords  a  striking  instance  of  the  energy 
with  Avhich  the  main  forces  of  the  State  may  be  con- 
verted to  doing  no  more  than  support  the  harmony  and 
integrity  of  the  family  group. 

The  third  class  of  problems  before  the  lawgiver,  in 
reference  to  the  bearing  of  law  upon  the  maintenance 
of  the  elementary  groups  of  which  the  State,  as  an 
entirety,  consists,  concerns  the  permissible  amount  of 
political  interference  with  the  individual  persons  com- 
posing the  several  groups.  It  is  only  in  very  primitive 
society  that  the  head  of  the  family,  as  representing 
every  member  of  it,  is  the  only  person  known  to 
the  law,  whether  as  owner,  or  contractor,  or  as  solely 
responsible  for  the  wrongful  acts  of  those  under  his 
control. 

There  are  historical  facts  which  seem  to  indicate  that 
there  is  a  stage  of  political  life  in  which  the  group  is 
everything,  and  the  individual  member  of  it  nothing. 
But  even  at  this  stage,  the  group  is  a  group  of  human 
beings ;  and,  in  the   last  resort,  it  must  be  definite  and 


GROWTH  OF  THE  VILLAGE  COMMUNITY.  131 

distinct  human  beings  who  feel  the  pressure  of  law.  At 
a  later  stage,  the  group  gradually  fades  into  greater  and 
greater  indistinctness,  though  (as  has  been  seen)  the 
description  of  its  limits  always  continues  a  prominent 
topic  of  law,  while  the  attention  of  the  lawgiver  seem 
wholly  fixed  upon  the  responsibilities  of  individual  men 
and  women. 

The  family  is  the  most  conspicuous  and  momentous, 
as  it  is  the  original,  of  the  groups  which  it  is  one  main 
purpose  of  law  to  circumscribe  and  to  defend.  But  it 
is  by  no  means  the  only  group  of  the  kind,  and  in  ad- 
vanced communities  there  are  a  variety  of  other  groups, 
the  combination  and  mutual  relations  of  which  are  of 
urgent  concern  to  the  well-being  of  the  State.  It  has 
recently  been  pointed  out  by  one  after  another  of  the 
explorers  into  primitive  conditions  of  society  that,  in  all 
Aryan  communities  at  any  rate,  an  organization  into 
villages  succeeds,  while  it  incorporates,  the  earlier  and 
simpler  oi'ganization  into  families. 

This  new  mode  of  organization  is  brought  about  by 
a  number  of  causes,  such  as  the  extension  of  families 
through  the  fiction  of  "  adoption ; "  the  accidental  pre- 
eminence of  particular  families,  leading  to  a  certain  union 
of  subordination  among  the  rest ;  casual  combinations 
for  purposes  of  mutual  defence  or  co-operation ;  and  the 
general  influences  of  neighbourhood  and  of  the  senti- 
ments of  relationship  and  friendship  to  which  neighbour- 
hood gives  rise.  When  such  an  organization  is  fully 
formed,  of  which  living  examples  are  presented  in  India 
at  this  day,  a  new  field  is  opened  for  the  operation  of 
law.  In  order  to  support  the  integrity  of  the  whole 
State,  it  becomes  the  purpose  of  law  to  define  the 
relations  of  the  several  villages  to  one  another,  and  to 
ascertain  their  obligations  to  the  State  itself,  which 
represents  them  all.      But  law  is    also    concerned   with 


132       LOCAL  AND  CENTRAL  GOVERNMENT. 

maintaining  their  internal  structure ;  with  mapping  out 
the  regions  of  independent  action  for  the  constituent 
families;  with  distributing  the  produce  resulting  from 
joint  efforts  ;  and  with  ascertaining  the  liabilities  incum- 
bent upon  each  for  the  general  benefit  of  all.  This 
internal  law  grows  up,  at  first,  in  the  shape  of  mere 
customary  usages,  which  have  commended  themselves  by 
their  transparent  utility,  or  have  been  the  mere  expres- 
sion of  actual  and  persistent  facts. 

This  village  group,  though,  from  its  generality  and 
its  antiquity,  it  seems  to  merit  especial  attention,  is,  in 
fact,  in  no  different  relation  to  the  whole  State  from  that 
of  the  modern  groups  of  the  parish,  the  county,  and  the 
borough.  With  respect  to  each  of  these,  the  same  class 
of  problems  lies  before  the  legislator.  Internal  laws  have 
to  be  devised  (if  they  have  not  spontaneously  developed 
themselves)  for  the  preservation  of  the  essential  structure 
and  character  of  the  group.  External  laws  have  to  be 
devised  for  the  jjurpose  of  bringing  the  several  groups 
into  relation  to  one  another,  and  enabling  or  compelling 
them  to  minister  to  the  general  support  of  the  whole 
State. 

The  inquiiy  how  much  belongs  to  one  class  of  these 
laws,  and  how  much  to  the  other,  is  one  of  the  most 
arduous  problems  of  modern  statesmanship.  An  error  in 
one  direction  or  in  the  other  is  almost  equally  perilous. 
There  is  the  danger,  one  way,  of  fostering  a  number 
of  independent  commimities  without  strength,  patriotism, 
or  permanent  vitality.  There  is  the  danger,  the  other 
way,  of  enervating  the  groups  by  external  interference, 
and,  while  seeming  to  magnify  the  State,  of  actually 
attenuating  and  destroying  it. 

In  modem  politics,  the  difficulty  is  to  a  certain  extent 
reduced  in  magnitude  by  the  use  of  a  number  of  devices 
for   promoting  the  free  and   sympathetic  interaction  of 


LOCAL  AND  CENTRAL  GOVERNMENT,       133 

local  and  central  government,  apart  from  the  application 
of  two  rival  bodies  of  law.  Among  such  devices  are  the 
representation,  in  the  central  legislature,  of  the  several 
more  prominent  groups  ;  the  combination  of  the  jury 
system  with  that  of  travelling  judges  of  assize ;  and, 
more  especially,  the  constant  control  exercised  over  local 
legislation  by  such  central  bodies  as  Government  offices, 
the  English  Privy  Council  Boards,  and,  in  some  cases,  tlie 
two  Houses  of  Parliament.  The  success  of  these  devices 
must  turn  upon  a  number  of  conditions,  which  may 
render  them  not  applicable  under  all  circumstances. 
Thus  mere  physical  distance,  variations  in  language,  or 
diversities  of  race  and  traditions,  may  render  even  the 
most  plausibly  devised  system  of  Government  incapable 
of  binding  together  into  a  true  State  communities  too 
widely  separated  in  space  or  alien  in  sentiment  from  one 
another.  If  the  attempt  be  made,  in  the  face  of  insuper- 
able obstacles,  anarchy  or  paralysis  must  be  the  sole 
result. 

These  considerations,  if  thoroughly  weighed,  may 
serve  to  explain  the  causes  of  the  disintegration  of 
the  Roman  Empire ;  the  debility  of  the  modern  Asiatic 
kingdoms;  the  conditions  of  interdependence  between 
the  States  of  the  North  American  Union ;  and  the  true 
relations  which  England  must  establish  between  herself 
and  her  colonies,  if  she  is  even  nominally  to  retain 
her  hold  upon  them. 

There  is  one  peculiar  group,  if  such  it  can  be  named, 
to  which  law,  in  all  ages  since  the  Christian  era,  has 
been  called  to  lend  its  aid  in  the  name  of  the  interest 
which  the  State  is  alleged  to  have  in  its  vitality  and 
perpetuity.  This  is  the  group  founded  upon  a  com- 
munity of  religious  belief  and  worship.  The  phenomenon 
of  law  regulating  the  internal  structure  and  prescribing 


134  LAW   IN   RELATION   TO   EELIGIOUS   BODIES. 

the  mutual  relations  of  groups  of  this  class  is  entirely 
novel,  because  it  is  only  in  comparatively  recent  times 
that  more  than  one  considerable  religious  body  has 
existed  within  the  limits  of  a  State  at  one  time.  The 
ancient  and  mediaeval  notion  of  religion  was  that  the 
confines  of  religious  belief  and  worship  were  exactly 
co-terminous  with  those  of  the  State  itself,  and  that,  if 
any  individual  persons  happened  to  dissent  from  the 
dogmas  generally  adhered  to,  they  were  of  no  more 
account,  and  were  not  less  obnoxious,  than  political 
traitors  or  rebels. 

A  number  of  events,  to  which,  for  the  present  purpose, 
it  is  not  necessary  to  do  more  than  aUude,  have  com- 
bined to  introduce  in  all  the  countries  of  modern  Europe 
a  marked  change  in  this  respect.  Religion  is  still  a 
powerful — and  perhaps,  on  the  whole,  the  most  powerful 
— influence,  both  in  the  conduct  of  the  life  of  individual 
persons  and  in  the  construction  of  corporate  societies 
which  are  highly  organized  in  themselves,  and  possess 
all  the  solidity  and  strength  derivable  from  intense  intel- 
lectual convictions  and  highly- wrought  emotional  fervour. 
But  these  associated  bodies  of  persons  are  in  many  States 
numerous;  and  in  no  modern  State  are  they  capable 
of  being  reduced  to  one  or  two.  Thus,  admitting  that 
groups  of  this  sort,  like  the  other  groups  already  alluded 
to,  are  natural  elements  in  the  composition  of  the  State, 
it  is  still  a  difficult  problem  to  decide  the  exact  measure 
of  support  and  control  they  should  severally  meet  with 
at  the  hands  of  law. 

In  some  important  respects  these  religious  bodies 
differ  from  the  other  groups — family,  village,  parochial, 
county,  and  borough — which  have  been  previously  ad- 
verted to  as  affording  subject-matter  for  law.  Religious 
bodies  almost  invariably  co-exist  only  by  forced  efforts  of 
mutual  toleration,  while  all  the  other  bodies  co-exist  apart 


LAW   IN    RELATION   TO   RELIGIOUS   BODIES,  135 

from  all  necessary  thought  of  rivalry  or  antipathy.  The 
existence  of  any  single  family,  village,  or  county,  pre- 
supposes, almost  as  of  necessity,  the  existence  of  a  number 
of  others.  Everything  is  prepared  for  mutual  help  and 
co-operation,  and  these  only  lack  the  stimulating  pre- 
sence of  law  to  discover  for  each  its  true  relations  to 
all  the  rest,  and  to  the  State. 

Religious  bodies,  on  the  contrary,  for  the  most  part, 
subsist,  in  theory,  by  the  exclusion  of  one  another.  Their 
mutual  condemnation  of  each  other's  opinions  and 
practices  may  be  smoothed  over  in  practical  life,  through 
the  personal  virtues  of  members  or  pre-eminent  leaders  of 
the  several  societies.  But  toleration,  at  the  best,  can  only 
be  looked  for  as  a  precious  growth  requiring  the  most 
anxious  culture,  and  by  no  means  as  an  essential  and 
natural  condition. 

If  these  religious  societies  have  to  be  brought  into 
that  relation  with  the  State  into  which  it  is  the 
peculiar  function  of  law  to  bring  all  the  groups  into 
which  the  members  of  the  community  spontaneously 
organize  themselves,  there  are  only  a  limited  number  of 
courses  to  be  adopted,  between  which  a  selection  must 
be  made.  Thus,  law  may  select  for  its  peculiar  patron- 
age a  certain  number  of  these  societies,  according  to  their 
respective  claims  as  grounded  on  the  number  and  wealth 
of  their  adherents,  on  the  antiquity  of  their  jjretensions, 
or  on  the  apparent  usefulness  and  truthfulness  of  their 
tenets.  This  patronage  may  be  exhibited  in  conceding 
exemptions  from  general  civil  burdens  to  the  ministers 
of  the  religious  body  favoured ;  in  supplementing  the 
salaries  of  the  ministers  from  public  funds  ;  or  in  accord- 
ing a  peculiar  amount  of  protection  to  the  property 
vested  in  the  body. 

Or,  again,  law  may  select  for  its  peculiar  patronage 
one  body  out  of  all  the  rest,  such  body  being  chosen  on 


136  AN   ESTABLISHED   CHURCH. 

the  ground  of  its  past  history  in  relation  to  the  general 
history  of  the  country, — the  selection  of  it  being,  pre- 
sumptively, justified  by  its  present  size  and  influence. 

The  patronage  in  this  last  case  is  likely  to  assume  a 
more  decided  form  than  in  the  former  cases,  and  those 
phenomena  are  produced  which  are  exhibited  in  England 
at  this  day  in  respect  of  the  Established  Church.  The 
Queen  or  King  must  necessarily  be  a  member  of  this 
Church.  All  the  chief  ministers  of  this  Church  are 
members  of  one  branch  of  the  legislature.  All  the  formu- 
laries of  public  worship  are  fixed  by  Act  of  Parliament. 
All  breaches  of  ecclesiastical  duty  are  cognizable  in 
special  courts  of  justice  constituted  by  the  State  for  this 
purpose.  All  the  chief  ministers  of  the  Church,  and  a 
vast  number  of  the  subordinate  ministers,  are  appointed 
by  the  executive  Government  of  the  day.  This  is  what  is 
meant  by  saying  that  the  Church  of  England  is  "  estab- 
lished." It  is  obvious  that  "  establishment  "  wiU  have  a 
different  meaning  for  every  country,  and  for  the  same 
country  at  different  epochs  in  its  history. 

A  third  method  that  law  may  adopt  is  to  show 
complete  neutrality  with  respect  to  all  religious  bodies, 
only  treating  them  in  the  same  way  as  other  corjDorate 
bodies  which  are  organized  for  any  purely  secular  purpose. 
In  this  way,  their  rights  of  ownership  would  be  fully 
protected,  and  the  mutual  liabilities  of  their  ministers 
and  congregations  defined  by  the  general  law  of  con- 
tract. Certain  supplementary  laws,  again,  may  provide 
for  the  special  registration  of  bodies  fulfilling  certain 
conditions,  the  result  of  which  will  be  the  concession  of 
privileges  to  their  ministers  for  the  performance  of 
certain  important  public  ceremonials,  as  marriages,  and 
for  the  assurance  of  quiet  and  order  in  the  performance 
of  public  worship. 

Which  of  these  methods  a  State  will  adopt,  for  the 


ENDOWMENTS.  137 

strenothening  and  regulation  of  the  relifnous  bodies 
whioli  assist  in  its  own  composition,  will  depend  as  much 
upon  the  actual  condition  of  the  country  as  determined 
by  its  previous  history,  as  upon  conceptions  of  ideal 
perfection  or  even  of  immediate  expediency. 

Besides  the  groups  which  have  hitherto  been  described 
as  the  subject-matter  of  law  in  the  discharge  of  its  main 
and  characteristic  function  of  maintaining  and  develop- 
ing the  structure  of  the  State,  there  are,  in  modem  times, 
a  number  of  other  temporarily  or  permanently  associated 
bodies  which,  on  behalf  of  the  services  they  affect  to 
render  to  the  whole  community,  solicit  the  special  protec- 
tion, as  they  demand  the  regulation,  of  law.  One  class  of 
these  bodies  is  that  the  purpose  of  which  is  to  make 
special  and  extraordinary  provision  for  the  current,  or  for 
the  exceptional,  needs  of  mankind,  whether  physical  or 
mental.  To  this  class  belong  hospitals,  asylums,  and 
universities  or  schools. 

The  origin  and  regidative  principle  of  these  bodies  is 
the  devotion  of  funds  accumulated  in  one  generation,  or 
accumulating  from  generation  to  generation,  to  the 
accomplishment  in  all  future  time  of  the  objects  con- 
templated. The  care  and  administration  of  the  fund 
is  committed  to  the  charge  of  certain  persons  either 
designated  by  the  person  devoting  the  fund,  or  nominated, 
from  time  to  time,  by  public  officials,  or  determined*  by 
some  mode  implying  a  union  of  both  sorts  of  appoint- 
ment. It  is  obvious  that  the  advantages  or  disadvantages 
to  the  State  of  recognizing  such  a  pennanent  consecra- 
tion of  the  material  wealth  of  the  country  to  such  ends 
as  are  here  indicated,  and  in  the  fashion  described, 
must  depend  upon  a  number  of  considerations  of  which 
the  statesman  must  take  fuU  account.  •  Whatever  be  the 
special  demands  due  to  the  peculiar  circumstances  of  the 


138  ENDOWMENTS. 

country  at  a  given  time,  laws  must  be  devised  for  the  pur- 
pose of  maintaining  the  existence  of  the  bodies  of  persons 
from  time  to  time  entrusted  with  the  task  of  administering 
the  several  funds ;  of  determining  their  modes  of  action ; 
and  of  fixing  the  degree  of  their  public  responsibility. 

The  peculiar  dangers  to  which  the  institution  of  these 
so-called  "  endowments  "  is  exposed  are  of  the  following 
kind.  In  the  first  place,  though  the  main  objects  on  behalf 
of  which  the  wealth  of  one  generation  may  be  bene- 
ficially applied  to  the  use  of  future  generations,  may  be 
easily  described  under  the  general  heading  of  unavoidable 
accident,  remediable  or  even  irremediable  disease — ^bodily 
or  mental — and  education ;  yet,  even  within  such  general 
terms,  there  is  large  room  left  for  the  play  of  mere 
eccentric  disposition.  To  confine  strictly  the  class  of 
permissible  endowments  within  any  language  capable  of 
being  comprised  in  the  terms  of  a  law  would  seem  to  be 
almost  impossible. 

Some  writers  have  urged  the  political  expediency  of 
allowing  the  largest  conceivable  license  to  settlers  and 
testators  in  the  matter  of  the  objects  to  which  they 
wish  their  accumulated  wealth  to  be  devoted,  provided 
that  at  some  future  time,  however  distant,  the  wealth 
either  lapse  afresh  into  the  treasury  of  the  State,  or 
be  diverted  to  objects  approved  as  beneficial  by  the 
supreme  political  authority  of  the  day.  The  question  is 
wholly  one  of  comparative  expediency,  and  the  answer 
to  it  for  any  particular  country  must  depend  upon  the 
motives  which  in  that  country  seem  to  be  the  most 
favourable  to  the  accumulation  of  wealth,  when  con- 
sidered in  the  light  of  the  necessary  inconvenience 
flowing  from  the  arrest  of  the  circulation  in  land  and 
money,  which  is  the  necessary  result  of  endowments. 
It  is  probable  that  a  security  that  their  funds  will  be 
wisely  employed,  in  all  future  time,  in  accordance  with 


ENDOWMENTS.  139 

the  demands  of  that  time,  will  stimulate  to  make  gifts 
to  charitable  objects  quite  as  many  persons  as  will  be 
deterred  by  a  knowledge  that  their  own  design  may 
hereafter  be  reconstructed. 

Secondly,  another  difficulty  is  experienced  in  regu- 
lating endowments  by  law  on  the  ground  that  while, 
at  every  moment,  the  administration  of  the  funds  must 
be  regulated  by  definite  persons,  the  nomination  of  these 
persons  is  a  matter  demanding  a  peculiar  degree  of  dis- 
cretion, and  their  constant  supervision  equally  calls  for 
the  most  unresting  vigilance. 

In  the  case  of  the  innumerable  endowments  which 
the  superstition  or  well-meant  eccentricity  of  past  ages 
have  handed  on  as  perplexing  heirlooms  to  succeeding 
ages,  the  making  and  regulating  nominations  to  trustee- 
sliips  with  the  requisite  amount  of  circumspection,  and 
the  control  of  the  conduct  of  trustees,  in  every  case 
involves  an  omnipresence  and  omniscience  on  the  part 
of  the  administrators  of  law  which  clearly  cannot  be 
looked  for.  The  mode  in  which  this  sort  of  difficulty 
is  encountered  in  England  is  by  the  appointment  of 
temporary  or  even  permanent  commissions,  with  power 
to  investigate  the  circumstances  of  certain  classes  of 
endowed  charities ;  and  either  simply  to  report  upon 
the  manner  in  which  the  funds  are  administered  with  a 
view  to  legislative  reform,  or  to  take  the  management  of 
them  to  some  extent  into  their  own  hands,  with  such  aid 
from  the  legislature  as  they  may  from  time  to  time 
receive  or  require. 

But  such  devices  are  very  desultory  in  their  operation, 
and  even  the  most  inquisitorial  of  commissions  seldom 
succeed  in  touching  more  than  the  more  important  and 
conspicuous  classes  of  endowments ;  while,  even  as  to 
these,  the  remedy  afforded  is,  without  incessant  aid  from 
the  legislature,  only  momentary,  if  not  wholly  inefficacious. 


140  ENDOWMENTS. 

The  only  true  remedy  for  the  difficulties  experienced  by 
law  in  the  process  of  making  endowments  subserve  the 
general  interests  of  the  State,  and  not  conflict  with 
those  interests,  is  to  ascertain  clearly  the  true  principles 
upon  which  alone  the  privilege  of  diverting  for  ever  the 
general  wealth  of  the  community  to  special  ends  dictated 
by  the  caprice  or  even  passion  of  private  persons  can  be 
permitted ;  and  then  to  provide  fearlessly  for  the  gradual 
suppression  or  reform  of  all  existing  endowments  not  in 
conformity  with  these  principles. 

Much  difference  of  opinion,  indeed,  may  exist  as  to 
the  exact  nature  of  these  principles,  as  with  respect  to 
the  expediency  of  admitting  an  indefinite  latitude  to  the 
fancy  or  the  seemingly  irrational  prejudices  of  donors ;  or 
of  importing  into  the  mode  of  applying  them  variations 
which  reproduce  in  no  sense  the  original  conception  of 
those  donors.  But  no  difference  of  opinion  can  exist  as 
to  the  inexpediency  of  letting  the  funds  be  wasted  or 
applied  to  objects  which  universal  experience  has  con- 
demned as  pernicious  and  destructive  to  the  State  ; 
and  even  still  less  can  exist  as  to  the  vigilance  that  must 
be  exerted  to  provide  against  the  fraud  and  incompe- 
tence of  those  in  whose  hands  the  funds  may  from  time 
to  time  be  vested. 

The  topic  of  "  endowments,"  viewed  as  a  subject- 
matter  of  law — and,  more  especially,  as  furnishing  a  suc- 
cession of  groups  of  persons,  the  maintenance  and  control 
of  which  groups  is  closely  bound  up  with  the  prosperity, 
if  not  with  the  existence,  of  the  State — introduces  another 
topic  of  even  still  greater  moment,  because  of  its  near 
connection  with  all  the  other  topics  ah-eady  passed  in 
review.  This  topic  is  "  trusteeship  "  ;  and,  though 
"  trustees  "  can  hardly  be  called  "  groups  "  of  persons 
either  naturally  or  artificially  associated  together  in  the 


TRUSTS  AND  TRUSTEES.  141 

political  sense  here  impressed  upon  the  term  "gi-oup," 
yet,  inasmuch  as  one  main  method  by  which  law 
regulates  the  essential  groups  is  through  the  intervention 
of  persons  denominated  trustees,  the  consideration  of 
"  trusteeship  "  properly  belongs  to  this  place. 

The  actual  history  of  "  trusteeship "  in  England  is 
well  known  to  every  one  tolerably  well  acquainted  with 
the  social  and  legal  history  of  the  country.  It  is  here 
of  importance  only  to  look  at  what  is  essential  and  likely 
to  be  permanent  in  the  institution,  neglecting,  as  far  as 
possible,  what  is  accidental  or  peculiar  to  the  course  of 
development  of  any  particular  country. 

The  necessity  for  the  institution  of  "  trusteeship " 
arises  from  the  fact  that  vast  numbers  of  persons  in  the 
community  who  are  invested  with  rights  are  unsuitable 
persons,  for  a  variety  of  reasons  real  or  presumed,  to  do 
all  those  acts  which  are  needed  in  order  to  make  the 
rights  available ;  to  defend  them  if  menaced ;  or  to  dis- 
charge the  duties  the  performance  of  which  cannot  be 
wholly  dissociated  from  enjoying  the  advantage  of  the 
rights.  The  grounds  of  this  unsuitability  may  be  very 
various,  as  also  the  modes  of  providing  substituted  per- 
sons in  the  stead  of  those  believed  to  be  unsuitable. 

Among  the  classes  of  persons  in  this  predicament  of 
unfitness  to  do  the  acts  pre-supposed  in  the  enjoyment 
ofrights,  and  essential  to  their  maintenance,  are  obviously 
all  those  persons  who  have  not  yet  come  to  years  of  discre- 
tion, this  period  being  fixed  either  by  law  or  by  the  will  of 
other  persons  competent  to  give  directions  in  this  respect. 
There  are  those,  again,  who  by  reason  of  mental  infirmity, 
either  congenital  or  superinduced  in  later  life,  are  in  the 
same  position  as  children ;  that  is,  they  can  enjoy  the 
advantages  of  rights,  but  can  neither  do  the  acts  needed 
to  render  the  rights  effective,  nor  discharge  the  duties 
incumbent  upon  them  in  respect  of  those  rights. 


142  TRUSTS   AND   TRUSTEES, 

With  reference  to  these  classes  of  persons,  the  institu- 
tion of  "trusteeship"  under  some  name  or  other  is  an 
obvious  necessity;  and,  indeed,  the  nature  of  the  institu- 
tion, in  all  its  most  essential  characteristics,  is  much  the 
same  in  all  countries. 

But  there  are  other  classes  of  persons,  with  respect 
to  whom  the  institution  is  far  more  artificial,  and 
indeed  implies  a  considerable  advance  in  the  pliancy  of 
political  and  legal  methods.  Such  are  persons  who  are 
so  numerous  and  so  indefinite,  that,  though,  as  they 
become  individually  determined,  they  are  quite  capable  of 
enjoying  the  advantages  derivable  from  rights,  yet  great 
inconvenience  to  themselves  and  others  would  follow  from 
regarding  any  one  of  them  capable  by  himself  of  doing 
solemn  acts,  and  discharging  multifarious  duties;  while 
any  prospect  of  getting  all  the  persons  to  combine  in 
doing  such  acts  and  discharging  such  duties  must  be 
abandoned  as  chimerical. 

This  difficulty  is  at  once  met  by  interposing  capable 
persons,  upon  whom  the  administrators  of  law  have  their 
constant  eye,  and  whose  duty  it  is  to  use  the  utmost 
vigilance  in  guarding  the  interests  and  discharging  the 
duties  of  persons  who,  from  their  dispersion  and  inde- 
terminateness,  are  treated  as  incompetent  to  the  task 
themselves. 

There  is  yet  another  class  of  persons  who  may  be 
treated  as  standing  in  still  greater  need  of  the  assistance  of 
others  for  the  protection  of  their  rights,  and  that  is,  the 
unborn.  In  the  case  of  every  endowment  the  unborn  in- 
terested persons  are  of  at  least  quite  as  great  importance 
in  the  eye  of  the  law  as  those  actually  in  being.  It  may 
be  said,  indeed,  to  be  the  peculiar  characteristic  of  the 
State,  as  a  permanent  body,  that  posterity  is  as  much  in 
its  thoughts  as  the  present  generation ;  and  though  it  may 
properly  hesitate  to  encumber  coming  generations  with 


TRUSTS  AND  TRUSTEES.  143 

liabilities  and  responsibilities  devised  by  those  who  must 
be  ignorant  of  future  needs  and  claims,  yet  when  once  the 
rights  of  a  future  generation  are  recognized,  provision 
will  be  made  for  rendering  these  rights  in  all  ways 
efficacious.  The  State  does  this  most  obviously  in  the 
case  of  endowTnents,  when  it  watches,  with  all  the  jealousy 
it  can,  the  mode  of  appointment  of  the  persons  who 
from  time  to  time  have  to  guard  the  rights  both  of  those 
living  and  of  those  yet  to  live.  But  the  State  exhibits 
the  same  care  for  those  not  yet  in  being  when  it  recog- 
nizes rights  conveyed  by  wdll  to  children  yet  unborn,  or 
allows  land  to  be  entailed  for  the  benefit  of  distant 
generations.  In  this  last  case  each  holder  is,  in  fact,  a 
trustee  for  future  holders,  whether  called  so  or  not,  and 
would  be  compelled  to  do  all  the  acts  essential  to  the 
support  of  the  rights  in  which  others,  yet  undetermined, 
have  as  gi-eat  a  concern  as  he  has  himself. 

The  modes  of  appointment  of  trustees  may  be  very 
various,  and  the  State  is  tempted  to  vacillate  between 
two  opposite  lines  of  policy.  It  is  possible  to  leave  the 
appointment  of  trustees  to  those  who  are  most  immedi- 
ately concerned  in  the  performance  of  the  acts  and  duties 
in  respect  of  which  the  appointment  needs  to  be  made. 
A  private  person  can  acquire  a  more  accurate  know- 
ledge of  the  character,  trustworthiness,  and  capacity  of  a 
given  man  who  is  near  at  hand,  and  whom  he  has  known 
all  his  life,  than  is  attainable  by  public  officials  or  admin- 
istrators of  law  at  a  distance,  and  involved  in  a  mass 
of  other  concerns  equally  demanding  attention.  On  the 
other  hand,  if  the  trust  extends  over  a  considerable  time, 
the  original  trustees  die,  or  fail  in  one  way  or  another, 
and  new  trustees  have  to  be  supplied,  the  question  is  pre- 
sented as  to  the  principle  upon  which  the  appointment 
ought  to  take  place. 

The  other  mode  of  appointment  is  to  nominate  certain 


144  LAW   IN   RELATION   TO   THE   STATE. 

permanent  officials,  who  shall  be  charged  with  all  the 
duties  appertaining  to  trusteeship,  and  the  employment 
of  whom  shall  involve  a  certain  regulated  charge  upon 
the  estate.  This  method  would  certainly  be  suitable,  if 
only  as  an  alternative  one,  in  the  case  of  all  private 
trusts;  while  in  the  case  of  public  endoAvments,  muni- 
cipal corporations,  ecclesiastical  and  religious  bodies  of 
all  sorts,  special  classes  of  trustees,  suitable  to  the 
peculiar  circumstances  of  the  trust,  as  well  as  to  its 
special  history,  might  conveniently  be  introduced, — 
provision  being  made,  in  all  cases,  for  the  due  admixture 
in  the  body  of  trustees  of  official  trustees,  local  as  well 
as  central.  It  is  probable  that  the  grossest  abuses,  both 
positive  and  negative,  attending  the  discharge  of  public 
trusts  in  modern  States,  would,  in  this  way,  be  most 
effectually  provided  against. 

It  is  not  necessary  in  this  place  to  proceed  further 
with  the  examination  of  the  leading  groups  of  persons 
for  the  composition  and  mutual  relations  of  which  it  is 
among  the  main  functions  of  law  to  provide.  It  is  im- 
portant, however,  to  notice  that,  though  originally,  and 
even  finally,  men  are  regarded,  for  purposes  of  law,  as 
members  of  small  communities  and  associations,  the 
aggregate  body  of  which  constitutes  the  State,  yet,  in  the 
immediate  action  of  law,  it  is  individual  men  and  women, 
and  not  associated  bodies  of  them,  who  are  addressed. 

It  may  be,  indeed,  as  happens  at  some  epochs,  that 
individual  persons  are  only  addressed  by  law  as  represent- 
ing or  personating  groups.  But  this  fact  does  not  affect 
the  operation  of  law,  because  the  groups  so  represented 
are,  as  it  were,  cast  into  the  shade  by  the  person  who 
stands  in  front  of  them,  and  it  is  with  his  rights  and 
duties  alone  that  the  law  concerns  itself  In  time,  how- 
ever, as  Sir  H.  Maine  and  othera  have  established,  the 


LAW    IN    EELATION    TO    THE    STATE.  145 

earlier  groups,  whether  of  the  family  or  the  village, 
undergo  a  sort  of  spontaneous  dissolution,  in  the  course 
of  which  the  old  group  is  gradually  lost  sight  of,  or 
becomes  of  subordinate  importance,  and  new  groups, 
constructed  on  a  more  artificial  type,  gradually  emerge. 
Then,  again,  the  same  phenomena  recur.  The  newly- 
associated  bodies  form  the  true  units  of  which  the  State 
is  composed.  The  individual  men  and  women  become 
again  subordinate  in  importance  to  the  small  societies  to 
which,  for  various  purposes,  they  belong  ;  and  yet  it  is 
of  necessity  to  these  men  and  women  that  the  law  imme- 
diately addresses  itself. 

Thus,  though  the  ultimate  purpose  of  law  is  the 
development  of  the  whole  State  life — that  is,  of  the 
corporate  life  of  all  the  men  and  women  who  are,  or,  in 
any  future  ages,  shall  be  members  of  the  State,  and  not 
alone  the  welfare  of  the  particular  men  and  women  now 
in  existence — yet  it  can  only  be  through  the  agency  of 
these  particular  men  and  women  that  the  higher  and 
ulterior  aim  can  be  reached.  It  thus  comes  about  that 
a  large  part  of  the  subject-matter  of  law  is  concerned 
with  what  may  be  called  private  rights  and  private 
duties;  that  is,  rights  in  which  the  personal  advantage 
of  one  or  a  few  persons  seems  to  be  (though  it  is  not) 
the  primary  object  of  law,  and  duties,  the  immediate  or 
sole  object  of  the  imposition  of  which  seems  to  be  the 
maintenance  of  those  rights. 

A  grave  misapprehension  of  the  objects  and  purpose 
of  law,  in  the  aspects  here  described,  has  led  to  the  most 
mischievous  results  in  the  region  of  practical  politics.  If 
once  it  be  held  that  the  limiting  value  of  a  law  is  the  amount 
of  personal  advantage  it  secures  to  an  ascertainable  number 
of  existing  men  and  women,  it  follows,  as  an  inexorable 
consequence,  that  the  desires  and  passions  of  the  majority 
must  always  be  allowed  to  prevail  over  the  remonstrances 


146        LAW  IN  RELATION  TO  THE  STATE. 

of  the  minority.  The  field  of  politics  becomes  a  mere 
scene  of  scrambling  among  a  rabble  of  contentious 
self-seekers.  Every  nostrum,  economical,  medical,  or 
social,  advocated  by  the  most  impudent  charlatans,  finds 
its  supporters  in  the  legislative  body,  and,  as  a  result  of  a 
compromise  among  competing  advocates,  has  a  chance  of 
being,  at  least  provisionally,  adopted.  The  only  test  of  the 
expediency  of  a  proposed  law  becomes  that  supplied  by 
statistics  ;  the  very  mention  of  political,  or  even  of  moral, 
principle  is  scouted  as  an  irrelevant  anachronism  ;  and  in 
the  vaunted  pursuit  of  the  greatest  amount  of  happiness, 
the  community  suddenly  wakes  up  to  find  itself  plunged 
into  an  abyss  of  the  deepest  degradation  and  slavery. 

The  only  prevention  and  cure  of  this  disastrous  con- 
dition of  things  is  to  be  sought  in  a  keen  and  deeply- 
inwrought  appreciation  of  the  truth  that  the  whole  is 
before  the  parts,  and  that  individual  well-being  is  to  be 
sought,  not  directly  from  law,  but  from  all  the  in- 
numerable influences  of  which  the  State  is  a  chief  and 
immediate  minister.  Law  upholds  the  State,  and  the 
State  upholds  its  members. 

The  functions  of  the  State  are  performed  through 
very  various  instrumentalities ;  some  of  them  taking  the 
form  of  organized  municipal  associations ;  some  that  of 
educational,  artistic,  or  scientific  guilds  ;  some  that  of 
appeals  to  the  historical  imagination,  by  way  of  figuring 
the  past  of  the  nation  and  preserving  a  sense  of  its 
continuity  ;  and  only  a  few  that  of  direct  compulsion, 
through  the  medium  of  law  and  the  executive  Govern- 
ment. 

Thus  the  individual  man  is  placed,  as  it  were,  between 
two  competing,  though,  on  the  whole,  harmonious  streams 
of  force — the  law  which  supports  the  State  and  the 
groups  of  which  the  State  consists,  pressing  upon  him 
on  one  side ;  and  the  direct  influence  of  the  State  itself, 


LAW   IN   RELATION   TO   THE   STATE.  147 

operating  partly  through  law,  pressing  upon  him  on  the 
other.  In  this  way  it  happens  that  every  person's  rights 
and  duties  are  of  a  twofold  nature,  some  of  them  lying  in 
a  narrower  circuit,  and  only  connecting  him  with  his 
fellows  in  the  immediate  neighbourhood ;  others  connect- 
ing him  with  the  State  itself,  in  all  its  aggregate  power 
and  sublimity. 

Some  consciousness  of  this  distinction  gave  rise  to 
the  celebrated  opposition  of  public  and  private  law, — 
an  opposition  which,  undoubtedly,  is  not  without  an 
important  meaning,  though  devoid  of  the  precision 
necessary  to  give  it  value.  Private  law,  however,  may 
be  said  broadly  to  be  that  kind  of  law  which  seeks 
the  advantaofe  of  the  whole  through  the  intermediate 
advantage  of  the  parts,  and  includes  large  portions  of 
the  law  of  ownership,  of  contract,  and  of  special  classes 
of  persons  (as  of  husband  and  wife).  Public  law,  on  the 
other  hand,  seeks  only  the  advantage  of  the  whole  with- 
out any  overt  reference  to  the  advantage  of  the  parts. 
Constitutional  law,  criminal  law,  and,  to  some  extent, 
laws  of  procedure,  are  thus  generally  included  in  Public 
law. 

Having  thus  pointed  out  the  general  function  of  law 
in  supporting  the  structure  of  the  State,  it  remains 
to  investigate  the  mode  in  which  it  actually  affects  the 
individual  men  and  women  to  whom  it  is  addressed. 
This  introduces  the  consideration  of  laws  of  ownership, 
of  contract,  and  of  crime. 


CHAPTER  YJIT. 

LAWS  OF  OWNERSHIP  OR  PROPERTY", 

It  has  been  seen,  from  the  considerations  urged  m  tlie 
last  chapter,  that  the  subject-matter  of  law  may  be  com- 
pendiously described  to  be,  first,  the  definition,  and, 
secondly,  the  support,  of  the  various  groups,  natural  and 
artificial,  of  which  the  State  is  composed,  and  in  the 
mutual  action  and  reaction  of  which  upon  each  other  the 
appropriate  activity  of  the  State  consists.  But  law 
attains  its  purposes  in  two  different  and,  in  some  respects, 
opposite  ways.  It  operates  directly  upon  the  groups,  and 
it  operates  on  the  individual  persons  whose  union  and 
mutual  relationships  constitute  the  groups.  One  part  of 
a  whole  system  of  national  law  is  concerned  with  one 
of  these  species  of  operation,  and  the  other  part  with 
the  other  species,  though  with  respect  to  some  important 
classes  of  laws  it  is  difficult  to  say  to  which  part  they 
pioperly  belong. 

Thus  all  that  portion  of  the  law  which  is  called 
"  Constitutional  Law"  has  little  reference  to  the  rights 
and  duties  of  private  persons,  those  rights  and  duties 
being  only  incidentally  desciibed  so  far  as  they  are 
instrumental  in  achieving  the  main  and  ostensible  pur- 
pose of  this  whole  branch  of  law — that  is,  the  description, 
limitation,   and   invigoration   of  those  great   gi'oups   of 


PEIVATE    AND    PUBLIC   mXEEESTS.  149 

persons  who  discliarge  tlie  legislative  and  executive  func- 
tions of  Government. 

So,  again,  the  portion  of  law  which  ascertains  the 
solemnities  and  legal  consequences  of  marriage  and  pa- 
rentage,— ^personal  as  it  must  be  in  its  direct  applica- 
tion,— nevertheless  treats,  from  first  to  last,  the  interest 
of  the  individual  person  as  subordinated  to  the  import- 
ance of  maintaining  unimpaired  the  integrity  of  the  sig- 
nificant groups  to  which  he  or  she  belongs. 

The  same  remarks  apply,  though  in  a  less  degree,  to 
laws  providing  for  the  support  of  permanent  institutions 
talcing  the  form  of  corporate  societies,  whether  for 
educational,  sanitary,  charitable,  or  mere  exceptional 
purposes.  The  interest  of  existing  individual  persons 
cannot  be,  and  is  not,  left  out  of  account,  but  it  is 
manifestly,  or  almost  obtrusively,  treated  as  means  to 
an  end,  and  readily  sacrificed  so  soon  as  the  attainment 
of  this  end  would  seem  otherwise  in  peril.  It  is  true  that, 
in  fact,  individual  and  momentary  interests  are  always 
tending  to  conflict  with  the  general  and  lasting  interest 
of  the  group ;  but  the  possibility  of  this  is  always  la- 
mented, and  when  it  occurs,  it  is  treated  as  a  corruption 
and  disease. 

But  there  are  other  vast  portions  of  every  legal  sys- 
tem in  which  the  grouj),  and  even  the  State  itseh",  would 
seem  to  be  neglected  as  objects  of  political  concern,  and 
in  which  the  individual  interests  of  particular  persons, 
or  the  general  and  common  interests  of  all  persons,  with- 
out any  reference  to  their  associated  character  in  smaller 
or  larger  groups,  is  the  end  to  which  law  is  addressed. 
To  this  portion  belong  laws  of  ownership,  of  contract,  and 
of  (so  called)  civil  injuries  and  crimes.  It  will  be  con- 
venient to  consider  these  several  topics  in  succession,  com- 
mencing with  the  laws  of  ownership. 

It  is  generally  recognized,  in  the  present  day,  that 
8 


150  LAWS   OF   OWNERSHIP   OR   PROPERTY. 

laws  of  ownership  have,  historically,  undergone  a  pro- 
gressive change  in  their  import  and  nature, — at  all  events, 
for  those  portions  of  the  human  family  which  have  most 
advanced  the  attainment  of  modern  civilization.  In 
primitive  times,  such  laws  of  ownership  as  existed  were 
the  main  or  sole  instrument  of  maintaining  the  integrity 
of  the  family  group.  The  formation  of  the  family  group 
seems  to  have  corresponded  chronologically  with  the 
desertion  of  purely  nomad  hahits  and  with  the  practice 
of  an  agi'icultural  or,  at  the  least,  of  a  regulated  pastoral 
life. 

At  this  stage,  the  protection  of  the  integrity  of  family 
ownership,  the  guardianship  of  such  claims  as  were  or 
might  be  founded  on  recognized  possession  by  a  family, 
was,  in  fact,  the  protection  or  guardianship  of  family 
life  itself  The  pasture  meadow,  the  wells,  the  sheltering 
trees,  and,  in  time,  the  arable  field,  changeable  as  they 
might  be  in  accordance  with  the  demands  of  fresh 
physical  wants,  were,  in  fact,  the  incarnate  embodiment 
of  the  mass  of  associations  on  which  the  sentiment  of 
the  indivisible  unity  of  the  family  was  based. 

No  doubt  these  associations  were  inherently  weak  and 
brittle,  infinitely  more  so  than  in  the  next  stage,  when 
associated  families  gave  birth  to  village  communities, 
and  to  the  institution  of  common  fields  with  regulated 
modes  of  culture.  But  the  degree  of  the  strength  of  the 
notion  of  primitive  ownership  is  not  so  much  here  in- 
sisted upon  as  the  fact  that  the  notion,  whatever  it  was, 
and  however  strong  or  weak  it  was,  was  not  distinguish- 
able from  the  notion  of  the  permanence  and  unity  of 
the  family  itself 

Thus,  early  laws  of  ownership,  based,  as  they  neces- 
sarily were,  on  the  notions  and  customs  existing 
antecedently  to  the  period  of  true  law, — that  is,  of  the 
foundation  of  the  State, — were,  so  far  as  they  existed 


EAKLY   ANTICIPATIONS   OF   OWNERSHIP.  151 

at  all,  among  the  most  material  and  essential  conditions 
of  social  existence.  How  far  the  era  of  village  com- 
munities and  the  anomalous,  or  as  some  say,  the  normal, 
era  of  feudalization,  contributed  to  enforce  this  view  of 
laws  of  ownership,  is  obvious  without  further  elucidation. 

It  may  be  laid  down  as  a  general  proposition,  that 
for  those  countries  which  have  given  rise  to  the  most 
exuberant  and  civilized  bodies  of  law,  laws  of  ownership 
were,  at  the  first,  a  large  portion  of  that  part  of  the 
law  the  main  purpose  of  which  is  to  define  and  to 
strengthen  the  primitive  groups  from  the  ulterior  asso- 
ciation of  which  the  State  derives  its  existence  and 
character. 

To  this  stage,  however,  another  one  gradually  suc- 
ceeds. The  fact  or  institution  of  ownership  is  such  an 
indispensable  condition  of  any  material  or  social  progress 
that,  even  throughout  the  period  during  which  the 
attention  of  law  is  concentrated  upon  family  and  village 
ownership,  the  ownership,  on  the  part  of  individual 
persons,  of  those  things  which  are  needed  for  the  susten- 
ance of  physical  life,  becomes  increasingly  recognized  as 
a  possibility  or  necessity. 

One  of  the  most  important  steps  out  of  savagery 
into  civilization  is  marked  by  the  fact  that  security  of 
tenure  depends  upon  some  further  condition  than  the 
mere  circumstance  of  possession. 

The  use  of  the  products  of  the  earth,  and,  still  more, 
the  manufacture  of  them  into  novel  substances,  consists, 
generally,  of  continuous  processes,  extending  over  a 
length  of  time  during  which  the  watchful  attention  of 
the  worker  can  only  be  intermittently  fixed  upon  all 
the  several  points  and  stages.  The  methods  of  agricul- 
ture and  of  grazing,  as  well  as  the  simj^lest  applications 
of  the  principle  of  "division  of  labour,"  similarly  pre- 
suppose the  repeated  absence  of  the  farmer  or  mechanic 


152  LAWS   OF   OWNERSHIP   OR   PROPERTY. 

from  one  pai-t  of  his  work  while  he  is  bestowing  undis- 
tracted  toil  upon  another  part ;  or  else  entire  absorption 
in  one  class  of  work,  coupled  with  a  steady  reliance 
that  another  class  of  work,  of  equal  importance  to  himself, 
is  the  object  of  coiTesponding  exertion  on  the  pai-t  of 
others. 

In  all  these  cases,  the  mere  fact  of  physical  holding, 
or  possession,  in  the  narrowest  sense,  is  no  test  whatever 
of  the  interests  or  claims  of  persons  in  the  things  by 
which  they  are  surrounded.  The  exact  modes  in  which 
such  interests  or  claims  become  recognized  in  early 
society  have  often  been  a  topic  of  curious,  but  generally 
futile,  speculation.  The  inconvenience  and  barbarity  of 
protecting  no  one  in  the  use  of  the  things  around  him 
except  him  who  is  actually  using  the  things,  and  during 
the  time  he  is  using  them,  are  so  palpable,  that  a  very 
slight  and  tentative  social  experience  might  seem 
sufficient  to  introduce  the  tnie  notion  of  ownership. 

But,  in  fact,  there  can  be  no  doubt  that,  as  with  all 
other  leading  moral  experiences,  the  institution  of 
ownership  does,  from  merely  accidental  circumstances 
of  a  favourable  nature,  reach  a  considerable  pitch  of 
development  before  the  possibility  of  such  an  institution 
not  being  in  existence  so  much  as  suggests  itself  to  the 
imagination.  Indeed,  the  popular  imagination  which 
could  distinctly  picture  to  itself  a  condition  of  society 
divested,  of  every  fact  implying  ownership,  could  only 
be  found  in  a  condition  of  society  in  which  ownership, 
as  a  fact,  was  ah-eady  familiar. 

The  true  order  of  evolution  of  aU  such  leading 
notions  is  that,  under  certain  peculiarly  and  accidentally 
favourable  conditions,  a  practice  is  actually  introduced, — 
generally  as  an  anomalous  exception  from  the  current 
usages.  The  influence  of  the  practice  spreads  gi-adually 
by  the  mere  effect  of  its  conforma.bility  to  human  well- 


PROGRESS   OF   THE  CONCEPTION    OF   OWNERSHIP,     153 

l)eincr.  A  rapidly  operating  association  of  ideas  makes 
the  practice  at  once  familiar  and  cherished.  After  a 
time,  and  at  repeated  intervals,  a  disruption  of  the 
practice  is  attempted  from  one  quarter  or  another,  and 
Avith  more  or  fewer  circumstances  of  violence.  The  thought 
and  feeling  of  the  community  are  roused  to  conscious 
activity.  The  fact  of  the  prevalence  of  the  practice,  the 
true  nature  of  it,  and  the  extent  of  it  are  submitted  to 
examination.  For  the  first  time,  also,  the  ethical  or 
material  value  of  the  practice,  and  the  true  modes  of 
testing  that  value,  are  also  called  in  question.  All  these 
critical  processes  are,  indeed,  very  gradual  ones  ;  and  while 
they  are,  at  first,  accompanied  by  the  most  hesitating 
and  almost  awestruck  reluctance,  they  continue  to  be 
executed  with  increasing  vigour  and  self-confidence 
throughout  the  whole  life  of  the  nation,  till  the  nature, 
limits,  and  value  of  the  moral  idea  or  institution  are 
finally  limned  out  in  the  clearest  possible  shape. 

There  has  been  here  sketched  the  mode  of  evolution  of 
the  fact  -or  idea  of  ownership.  But  the  mode  is  identi- 
cally the  same  in  the  case  of  government,  marriage,  con- 
tract. Clime,  and  such  more  abstract  notions  as  liberty, 
justice,  patriotism,  and  even  the  primary  ideas  of  right 
and  wrong.  These  are  ideas,  practices,  institutions,  and 
facts,  bearing  such  a  definite  relation  to  the  physical, 
intellectual,  and  ethical  constitution  of  man's  nature,  that 
the  absence  of  them  is  incompatible  with  the  existence 
and  progress  of  human  society.  Nevertheless,  they  are 
not  consciously  created  from  the  first  by  sapient  men  in 
order  to  promote  the  ends  of  that  society.  Nor,  indeed, 
is  their  texture  such  that  the  mere  fiat  of  the  lawgiver, 
attended  by  all  the  array  of  penalties  at  his  command, 
can  call  them  into  being,  or  even  largely  promote  their 
growth. 

They  take  their  rise,  at  the  first,  from  exceptionably 


154  PROGRESS   THE   CONCEPTION   OF   OWNERSHIP. 

favourable  facts,  or,  in  other  words,  from  the  accidental 
absence,  in  certain  times  and  places,  of  common  impedi- 
ments. Under  continuously  favourable  conditions,  these 
ideas  and  facts  become  rooted  and  familiar  in  the  popular 
mind.  The  ways  and  habits  of  the  people  are  fashioned 
upon  the  hypothesis  of  their  existence.  Early  poetry  and 
song  take  notice  of  them.  The  occasional  invasion  of 
their  sanctity  gives  rise  to  sentiments,  often  desultory 
enough,  of  mingled  awe  and  abhorrence.  The  practical 
rules  in  which  they  must  needs  express  themselves  call, 
from  time  to  time,  for  the  interposition  of  wise  and 
trusted  men  to  rescue  them  from  ambiguity,  to  ascertain 
their  validitj^,  and  to  prescribe  the  special  mode  of  their 
application  in  particular  circumstances.  They  thus 
assume  much  of  the  character  of  true  laws,  needing  only 
the  final  institution  of  the  State,  and  of  courts  of  justice 
as  the  instruments  of  the  State,  to  perfect  that  character. 

It  may  be  that  the  course  is  precipitated  by  the 
frequently  recurring  phenomenon  of  an  early  code, — 
that  is,  a  published  body  of  customary  rules,  generally 
extracted  by  the  force  of  popular  clamour  from  the  secret 
treasure-house  of  an  aristocracy  or  a  priesthood  (see 
Maine's  Ancient  Latv).  Any  way,  the  path  (though 
tardily  enough  pursued)  is  from  this  epoch  cleared  for 
full  investigation,  criticism,  social  disputation,  philosophi- 
cal controversy,  forensic  struggle,  and  legislative  debate. 
The  idea  or  fact  is  thenceforward  firmly  established  in 
all  its  transparent  clearness  and  true  proportions. 

The  fact  of  ownership  and  the  laws  of  ownership  have, 
up  to  this  point,  been  regarded  in  two  aspects.  One 
aspect  is  that  of  the  place  they  occupy  in  maintaining  the 
primordial  elements  of  the  State  in  their  unmutilated 
integrity,  and  in  giving  to  the  early  family  and  village 
gToup  their  substantial  framework,  projected,  as  it  were, 
into  the  world  of  physical  things.    In  this  aspect,  laws  of 


MORAL   ASPECTS   OF  PRIMITIVE   OWNERSHIP.  155 

ownership  originally  present  themselves  as  historical 
facts  ;  and  at  the  epoch  at  which  they  so  present  them- 
selves they  are,  strictly  speaking,  part  of  the  constitu- 
tional law  of  the  country,  their  public  purposes  taking- 
precedence,  at  every  point,  of  the  advantages  they  claim 
to  confer  on  individual  persons. 

Another  aspect  in  which  the  facts  of  ownership  and 
of  laws  of  ownership  have  been  exhibited  is  that  of  the 
modes  in  which  they  conduce  to  the  material  well-being 
of  the  State,  or,  rather,  that  in  which  they  supply  the 
indispensable  conditions  for  the  attainment  of  that  well- 
being.  In  this  latter  aspect  men  are  regarded  less  as 
possessed  of  capacities  for  forming  themselves,  and  for 
being  formed,  into  small  groups  from  an  assemblage  of 
which  the  State  is  constructed,  than  as  individually 
endowed  with  a  physical  and  moral  constitution  which 
expresses  itself  in  a  variety  of  definite  wants,  desires, 
hopes,  and  tendencies.  So  far  as  these  latter  are  of  a 
purely  material  sort,  it  has  been  seen  that  ownership,  as 
an  institution  and  as  a  ground  of  law,  is  one  of  the 
most  important  instruments  in  satisfying  them. 

But  it  is  yet  to  be  shown  that  it  is  not  material  wants, 
hopes,  desires,  and  tendencies  alone  to  which  ownership 
lends  its  aid  as  a  potent  instrument  of  satisfaction  and 
even  development.  The  moral  aspirations  and  needs  of 
individual  man  are  scarcely  less  signally  sustained  and 
gratified  by  ownership  than  the  material.  And  this 
gives  rise  to  yet  a  third  aspect  in  which  the  fact  of 
ownership  and  laws  of  ownership  admit  of  being- 
presented. 

It  is  obvious  that,  apart  from  the  possibility  of  owner- 
ship, the  position  of  man,  as  a  moral  being,  is  pitiable 
and  even  contemptible  in  the  extreme.  He  keeps  for 
himself  and  for  his  own  uses  just  so  much  as  he  is  able 
to  retain  hold  of,  and  for  just  so  long  a  time  as  he  can 


156  MORAL  ASPECTS   OF  OWNERSHIP. 

retain  such  hold  of  it.  His  energies  must  be  ^vhol]y 
engaged  in  the  exercise  of  vigilant  retention.  His  hand 
is  against  every  man's,  because  every  man's  hand  is 
against  him.  There  is  no  room  or  opportunity  for  specu- 
lation about  the  future  uses  to  which  he  shall  turn  his 
possessions,  nor  even  about  any  but  the  most  obvious  and 
simple  immediate  uses.  There  can  be  no  play  for  the 
imagination  as  to  the  effect  of  protracted  or  carefully 
planned  labour  upon  the  things  about  him,  and  still 
less  as  to  the  consequences  of  regulated  co-operation 
with  his  fellows.  Suspicion,  fear,  self-indulgence,  an 
instinctive  sense  of  the  wisdom  of  immediate  consump- 
tion, and  of  trusting  as  little  as  possible  to  the  morrow,  are 
the  habits  of  mind  generated  under  such  circumstances, 
and  which,  in  fact,  represent  an  almost  ideally  savage 
state. 

Nor  is  it  merely  that  the  absence  of  ownership 
prevents  the  most  precious  qualities  and  elements  of 
human  nature  from  being  properly  cultured  and  de- 
veloped. It  prevents  those  qualities  and  elements  from 
so  much  as  existing  at  all.  A  faith  in  the  future,  a 
faith  in  others,  habits  of  self-reliance  and  of  forming  far- 
sighted,  deliberate,  and  complicated  plans,  are  very  hard 
to  call  into  being,  as  they  need  the  utmost  possible 
stimulus  of  all  sorts  to  develop  them  highly.  But  it 
is  ownership  and,  ultimately,  laws  of  ownership  which 
perform  the  main  function  in  both  creating  and  stimu- 
lating these  qualities  and  habits. 

If  a  man  owns,  and  not  merely  possesses,  his  imagina- 
tion centres  round  the  object  of  ownership,  and  through 
the  medium  of  it  he  is  brought  into  permanent  and 
incessant  contact  with  other  persons  about  him ;  with 
his  own  future  life  and  his  modes  of  conducting  it ;  with 
his  children  and  successors;  with  all  the  institutions, 
social  or  political,   with   the   validity  and  integrity  of 


MORAL   ASPECTS   OF   OWNERSHIP.  157 

winch  his  own  rights  of  ownership  are  indissolubly 
connected.  This  is  most  especially  true  in  the  case  of 
the  ownership  of  land  and  immovables;  and  one  of 
the  main  political  arguments  in  favour  of  a  system 
of  peasant  proprietorship  is  based  upon  a  recog-nition  of 
these  facts.  But  it  is  also  true  in  respect  of  all  owner- 
ship whatever.  The  recognition  of  ownership  implies 
the  existence  of  a  society,  however  small  or  feebly 
organized ;  and  what  might  be  supposed  to  be  a  mere 
tribute  to,  and  expression  of,  natural  selfishness  becomes 
the  most  remarkable  aid  in  educating  men  into  unself- 
ishness. 

From  the  above  considerations  it  will  be  seen  what  is 
the  meaning  of  the  favourite  view  of  the  great  school  of 
German  jurists,  to  the  effect  that  ownership  increases 
man's  power  (yerinogen)  or  physical  and  moral  capacity. 
As  an  owner,  actual  or  possible,  man  is  a  more  worthy 
and  capable  being  than  he  would  be  otherwise.  One 
large  portion  of  human  life,  even  under  favouraole 
circumstances  of  climate,  production,  manufacturing  skill, 
and  mechar/cal  invention,  must  be  concerned  with  pro- 
cesses of  turning  to  human  uses  the  things  of  the  earth. 
The  might,  physical  and  moral,  of  any  particular  man 
must  be  largely  measured  by  the  control  of  human 
labour,  present  and  prospective,  which  he  can  exert,  or 
by  the  quantity  of  past  labour  of  the  product  of  Avhich 
he  is  able  to  avail  himself.  In  a  highly  organized  society 
the  poorest  member  shares  in  this  physical  and  moral 
grandeur  with  the  richest.  That  he  is  not  actually 
starving ;  that  the  possibility  of  work  and  recompense 
yet  await  him;  that  others,  at  least,  are  richer  than 
himself,  and  therefore  able  to  help  him;  or,  at  the  worst, 
that  he  can  attribute  his  poverty  either  to  exceptional 
calamity  or  to  personal  shortcomings  of  his  own,  are 
momentous   facts    which    tend  to    raise    even   the  most 


158  MORAL   ASPECTS   OF   OWNERSHIP. 

worthless  beggar  immeasurably  in  the  scale  of  humanity 
as  a  dignified  member  of  the  race. 

This  last  aspect,  however,  of  ownership,  as  an  essential 
instrument  in  the  culture  of  large  and  valuable  elements 
of  human  nature,  gi^adually  leads  on,  in  a  very  advanced 
condition  of  civilization,  to  a  yet  higher  conception.  A 
sentiment  grows  that,  just  as  each  workman  can  elaborate 
from  the  fruits  and  products  of  the  earth  far  more  than 
is  needed  for  his  own  personal  consumption,  and  just  as  a 
person  with  a  large  command  of  labour  has  an  enormous 
surplus  over  and  above  what  he  can  employ  in  ^^rocuring 
the  most  luxurious  advantages  for  himself  and  his  family, 
there  must  be  some  appropriate  end  to  which  the  product 
of  things  owned,  and  the  benefits  of  ownership,  ought 
to  be  directed,  other  than  that  implied  in  the  satisfaction, 
even  to  the  full,  of  the  owner's  own  wants.  The  unequal 
division  of  the  things  of  the  earth,  which  no  scheme 
of  laws  of  ownership  can  obviate,  however  much  it  may 
mitigate  it,  makes  ever  increasingly  pressing  the  prol)lem 
as  to  the  use  to  which,  morally,  the  surplus  profits  of 
things  owned  ought  to  be  turned. 

There  may  be  an  advantage  in  the  concentration  of 
wealth,  and  in  the  unity  and  economy  of  management 
which  it  brings  with  it ;  but  there  can  be  no  general 
advantage  in  favouring  a  state  of  society  in  which  the 
few  are  surfeited  with  excessive  riches,  and  the  many  are 
scarcely  able  to  obtain  the  necessaries  of  life.  It  is  for 
the  moralist  and  the  politician,  enlightened  by  the  teach- 
ing of  the  political  economist,  to  solve  this  problem. 
It  is  only  necessary  here  to  state  that  the  true  aspect 
in  which  ownership  is  to  be  regarded  is  that  of  a  trust 
for  the  general  benefit  of  all.  The  idea  may  or  may  not 
express  itself  in  the  form  of  law.  If  it  do  so  express 
itself,  it  will  take  the  form  of  Communism  of  one  species 
or  another. 


COMMUNISM.  159 

It  Is  a  very  unfair  charge  to  make  against  those  who 
advocate  the  introduction  of  a  Communistic  type  of 
society  to  allege  that  they  design  to  abolish  iiroperty. 
They  wish  to  change  the  existing  laws  of  property,  and 
to  have  enacted  in  their  stead  other  and  (as  they  think) 
better  laws.  Some  of  them  may  even  go  so  far  as  to  be 
willing  to  disappoint  the  expectations  of  existing  owners, 
and  to  supplant  them  by  bringing  in  a  new  race  of  owners. 
The  morality  or  expediency  of  any  such  policy  must,  in 
every  case,  be  judged  on  its  own  grounds,  in  view  of  all 
the  circumstances.  But  the  advocates  of  Communism,  as 
such,  can  never  be  charged  with  the  attempt  to  abolish 
ownership  or  property  in  itseK  So  far  are  they  from 
this,  that  they  are  of  all  men  the  most  zealous  to  define 
minutely  the  rules  under  which  individual  ownership, 
when  once  accrued,  shall  be  respected,  the  fruits  and 
products  of  common  things  shall  be  distributed,  and 
every  member  of  the  community  secured  against  the 
consequences  of  caprice  or  accident  of  any  sort.  Indeed, 
every  Communistic  theory  involves  a  most  complicated 
law  of  property. 

Having;  ascertained  what  are  the  ethical  and  material 
antecedents  of  ownership,  and  of  laws  of  ownership,  and 
what  are  the  circumstances  and  ideas  to  which  laws  of 
ownership  are  indebted  for  their  gi'owth  and  develop- 
ment, it  remains  to  analyze  a  law  of  ownership  into  its 
constituent  parts,  and  to  investigate  the  logical  nature 
and  historical  fortunes  of  each  of  those  parts. 

A  law  of  ownership  has,  for  its  immediate  object,  to 
ascertain  the  relations  of  persons  towards  each  other  in 
respect  of  the  possession  or  use  of  things.  The  posses- 
sion or  use  is,  in  itself,  a  mere  physical  fact.  The  effect 
of  a  law  of  ownership  is  to  bring  this  possession  or  use 
under  the  control,  as  it  were,  of  social   reason;  to   de- 


160  ELEMENTS   OF  A  LAW  OF   OWNERSHIP. 

termine  under  what  conditions  it  shall  or  shall  not  be 
protected ;  to  name  the  things  in  respect  of  which  pos- 
session shall  be  recognized  at  all ;  to  define  the  limits  of 
time  and  space  over  which  the  possession  shall  be  allowed 
to  extend ;  and  to  ascertain  the  persons  who,  in  respect 
of  any  given  thing,  at  any  given  time,  shall  be  entitled 
to  the  possession  or  use  of  it.  When  once  the  rightful 
possessor  is,  in  respect  of  a  given  thing,  at  a  given  time, 
ascertained,  he  has  vested  in  him  legal  rights  against  all 
other  persons  whatsoever.  The  extent  of  these  rights 
may  be  small  and  limited,  or  be  large  and  indefinite; 
and  this,  both  in  respect  of  the  {ime  during  Avhich  the 
rights  have  to  last,  and  of  the  variety  of  the  uses  to 
which  the  thing  possessed  may  "be  turned.  So,  again, 
there  may  be  a  multitude  of  ways  which  the  law  may 
select  for  denoting' that  these  rights  have  become  vested 
in  a  particular  person,  and  the  law  may  interfere  to  a 
greater  or  less  extent  with  the  freedom  of  individual  choice 
in  recognizing  a  right  of  ownership  as  vesting  in  one 
person  rather  than  in  another.  _ 

Thus  the  elements  in  a  completely  developed  law  of 
ownership  may  be  arranged  in  some  such  way  as  the 
following : — First  (1)  of  all,  the  things  as  to  which  owner- 
ship is  possible  have  to  be  determined.  Secondly  (2),  the 
quality  and  extent  of  the  rigJits  recognized  by  law  have 
to  be  precisely  described.  Thirdly  (3),  the  modes  in 
which  those  rights  become  vested  have  to  be  described 
and  enumerated.  These  are  the  main  essential  parts  of 
every  law  of  ownership. 

For  purposes  of  codification,  or  for  a  convenient  classi- 
fieatory  exhibition  of  the  whole  law,  it  may  be  desirable, 
and  it  is  customary,  to  make  the  divisions  more  numer- 
ous. Thius  "  persons  who  own  "  will  generally  be  found 
to  form  a  distinct  head  of  the  whole  subject.  But,  in 
modern  States,  there  are  no  persons  whatever, — except 


CHILDEEN   AND   LUNATICS.  ]ni. 

perhaps  the  numerically  insignificant  class  of  outlaws 
and  felons, — who  are  wholly  destitute  of  all  capacity  of 
being  owners,  though,  for  one  purpose  or  another,  a 
variety  of  limitations,  temporary  or  permanent,  are 
frequently  imposed  upon  important  classes  of  persons 
in  respect  to  the  actual  exercise  of  rights  of  ownership. 

These  limitations  do  in  practice  reduce  the  value 
of  the  right  itself,  because  a  right  cannot  be  separated 
in  thought  (however  much  it  is  in  legal  lang\iage) 
from  the  exercise  of  it.  The  effect  of  these  limitations, 
however, — as  applied,  for  instance,  to  lunatics,  children, 
and  in  some  cases  to  married  women, — is  to  impose  on 
other  persons,  in  respect  of  the  incapacitated  persons, 
duties  which  shall,  hypothetically,  put  them  in  the  same 
advantageous  position  they  would  hold  if  they  were 
capable  of  exercising,  or  were  allowed  to  exercise,  rights 
of  owijership  to  the  fullest  extent.  The  expediency  of 
constructing  these  anomalous  classes  is  not  here  in 
question.  With  respect  to  lunatics  and  children,  that 
expediency  is  not  likely  to  be  disputed.  With  respect  to 
married  women,  the  matter  is  closely  related  to  the  whole 
topic  of  the  legal  protection  or  oppression  of  women,  and 
a  rapid  change  of  view  on  the  topic  generally  is  making 
itself  apparent  both  in  this  and  in  other  countries. 

Other  subdivisions  generally  to  be  found  in  the 
enumeration  of  the  chief  heads  of  a  law  of  ownership 
are  "  modes  in  which  rights  of  ownership  are  terminated," 
and  "modes  of  protecting  rights  of  ownership."  The 
matter  falling  under  the  first  of  these  heads  is,  partly, 
expounded,  as  of  necessity,  in  treating  of  modes  in  which 
rights  become  vested;  because  it  often,  if  not  universally, 
happens  that  rights  vest  in  one  person  only  because  they 
have  ceased  to  vest  in  another, — as  in  the  case  of  an 
ordinary  succession  on  death,  or  of  a  conveyance  by  sale. 
Again,  the  exact  description  in  time,  nature,  and  extent 


162  LAWS  OF  OWNERSHIP   OR  PROPERTY. 

of  a  right  carries  with  it  a  description  of  the  mode  in 
which  it  is  terminated,  because  it  is  terminated  only 
because,  by  its  original  nature  and  limits,  it  cannot  last 
longer. 

"  Modes  of  protecting  rights  of  ownership "  have 
in  themselves  a  superior  claim  to  be  counted  among  the 
essential  elements  of  a  law  of  ownership.  But  it  is 
better  to  treat  the  protection  of  rights  generally  as  a 
distinct  topic  of  equal  applicability  to  all  kinds  of  rights 
whatsoever.  In  all  the  best  known  systems  of  law,  it 
is  customary  to  treat  laws  of  ownership  under  three 
different  departments  of  the  legal  system :  first,  under 
laws  of  ownership  propei-,  in  which  the  substantive  rights 
of  owners  and  the  modes  of  acquiring  those  rights  are 
described;  secondly,  under  the  law  of  civil  injuries  and 
criminal  law,  where  all  the  distinct  modes  of  violating 
rights  of  ownership  are  enumerated,  and  the  subject 
generally  treated  from  the  point  of  view  of  duties  rather 
than  rights ;  thirdly,  under  laws  of  procedure,  wdiere  the 
remedies  for  the  actual  or  threatened  breach  of  laws  of 
ownership,  among  other  laws,  are  described  and  enu- 
merated, and  all  the  steps  unfolded  by  which  an  injured 
owner  is  to  seek  compensation,  or  to  guard  himself 
against  future  injury. 

According  to  the  distribution  above  suggested  as  most 
convenient  for  the  present  purpose,  the  first  (1)  topic 
with  which  it  has  been  seen  that  a  law  of  ownership  has 
to  deal  is  that  of  the  things  in  respect  to  which  ownership 
is  permissible.  It  is  not  in  respect  of  every  physical  object 
that,  at  any  given  time,  the  law  cares  to  exercise 
[control,  and  to  prescribe  rules  and  conditions  of  appro- 
priation. The  purpose  of  the  law's  interference  is  to 
arrest  interminable  competitions,  and  to  promote  security 
by  regulating  distribution.  But  it  depends  upon  the 
actual  circumstances  of  a  community,  and  upon  the  stage 


EARLY  PROPERTY  IN  LAND.  1C3 

of  its  social  progress,  whether  certain  classes  of  things 
are  or  are  not  comprehended  in  the  list  of  things  as  to 
which  ownership  is  possible.  For  instance,  in  very 
primitive  times,  whether  the  community  be  pastoral  or 
agricultural,  the  economical  value  of  land  is  so  extremely 
small,  that  it  is  only  when  family  life  has  already 
become  highly  organized  that  land  is  a  topic  of  laws 
of  ownership.  Indeed,  so  long  as  the  population  is 
small,  the  needs  of  it  limited,  and  the  quantity  and 
choice  of  land  indefinitely  large,  it  is  not  possible  that 
any  idea  of  appropriation  sufficiently  fixed  to  afibrd  a 
basis  for  law  can,  by  possibility,  exist. 

It  is  true  that  the  rise  of  the  genuine  family,  the  de- 
velopment of  agricultui'e,  and  the  formation  of  the  village 
community,  are  so  nearly  contemporaneous  with  the  first 
appearance  of  embryonic  law,  that  the  hypothesis  of  land 
being  excluded  from  an  enumeration  of  the  possible  subjects 
of  ownership  is  a  violent  and  unnatural  one,  except  for 
the  mere  purpose  of  illustration.  Apart,  however,  from 
this  extreme  case,  it  is  obvious  that,  in  a  small  popula- 
tion with  simple  habits  of  life,  land  occupies  a  very 
difierent  position,  in  respect  of  importance  and  dignity 
for  legal  purposes,  from  that  which  it  occupies  where  the 
population  is  densely  crowded  and  the  quantity  of  land 
available  for  agricultural,  pastoral,  building,  productive, 
and  residential  uses  is  severely  restricted.  In  early 
Roman  law,  land  only  ranked  with  cattle  and  slaves  as 
a  serviceable  instrument  of  economical  existence,  and 
as  only  one  out  of  a  few  such  instruments;  whereas 
in  modern  systems,  the  laws  relating  to  land  are  regarded 
as  of  the  utmost  political  importance,  and  those  around 
which  the  most  vehement  political  passions  may  he 
expected  more  and  more  decisively  to  gather. 

If,  however,  in  a  primitive  community,  land  exists  in 
tolerable  plenty,  it  may  be  said  that  other  things  scarcely 


IGt   HISTORY  OF  REAL  AND  PERSONAL  PROPERTY. 

exist  at  all,  and  therefore  it  is  long  before  they  are 
recognized  as  subjects  of  legal  ownership.  The  fortunes 
of  res  nee  mancipi  in  Roman  law  and  of  personal  j^roperty 
in  English  law,  as  contrasted  with  those  of  res  mancipi 
and  real  properUj,  are  now  sufficiently  familiar  to  aU.  A 
general  account  of  their  history  may  be  given  by  saying 
that,  in  very  early  times,  only  a  very  few  specific  things 
are  regarded  as  possible  subjects  of  legal  ownership, 
and  that  these  things  are  those  which  are  of  the  most 
obvious  practical  utility  to  a  primitive  community. 
Among  such  things  stand  pre-eminent  land  and  immov- 
ables generally. 

As  the  community  progresses,  as  manufactures  and 
commerce  are  developed,  and  wealth  assumes  a  vast 
variety  of  forms,  movable  property  calls  for  the  inter- 
position of  law,  first  to  recognize  it  as  a  subject  of  owner- 
ship, and  then  to  place  it  on  a  footing  of  equal  dignity 
and  importance  with  that  of  immovable  property.  Inas- 
much as  general  intelligence  gTew  after  the  time  that 
immovable  things  were  the  chief  or  sole  possible  subject 
of  ownership,  it  was  to  be  expected  that  the  legal  rules 
applicable  to  the  ownership  of  the  newer  kinds  of 
property  should  be  more  simple,  as  well  as  artistic,  than 
the  rude  and  complicated  rules  applicable  to  the  older 
kinds. 

The  last  stage  of  the  progress — that  which  is  now 
proceeding  in  the  leading  countries  of  Europe — is  the 
rapid  assimilation  of  the  laws  of  ownership  applicable 
to  the  older  classes  of  things  owned  to  the  laws  applicable 
to  the  newer  class.  Sir  Henry  Maine  has  described  the 
course  of  this  evolution  more  at  length  in  his  "  Ancient 
Law,"  and  for  the  present  purpose  it  is  sufficient  thus 
briefly  to  allude  to  it  by  way  of  showing  how  the  class 
of  things  capable  of  ownership  is  originally  formed. 

There  are,  fui-thermore,  in  all  States,  a  number  of  other 


DIVISIONS   OF   THINGS,  1G5 

classes  of  things  which,  for  one  reason  or  another,  are,, 
either  temporarily  or  permanently,  excepted  from  the 
category  of  things  of  which  appropriation  is  possible. 
Such  are  things  devoted  to  the  uses  of  religion;  things 
employed  in  the  actual  administration  of  the  State; 
things  regarded  as  belonging,  in  a  sense,  to  every  one, 
though  managed  and,  in  fact,  owned  by  public  officials,  in 
order  to  secure  the  greatest  benefit  of  all,  by  aftbrding 
protection  against  spoliation  or  encroachment  on  the  part 
of  any  one.  To  the  last  class  belong  the  shores  of  navi- 
gable rivers,  public  harbours  and  docks,  public  paths,  and 
(if  they  do  not  fall  under  the  previous  class)  streets, 
roads,  and  museums,  or  public  institutions  for  the  culture 
of  science  and  art.  Under-  the  second  class  fall  Govern- 
ment buildings,  palaces,  dockyards,  arsenals,  and  materials 
and  implements  appertaining  to  them  of  every  kind. 

The  first  class — that  is,  things  devoted  to  the  use 
of  religion^ — will  depend  for  its  description,  in  some 
measure,  upon  the  existence  or  not  of  the  institution 
of  a  National  Church,  Apart,  hov^^ever,  from  the  fact 
of  such  an  institution,  the  practice  of  recognizing  endow- 
ments, that  is,  the  permanent  consecration  of  land  and 
other  things  to  definite  ends  regarded  as  not  inconsistent 
with  the  well-being  of  the  State,  operates  so  as  to 
remove  certain  specific  things  out  of  the  class  of  things 
capable  of  appropriation.  They  are  not,  strictly  speak- 
ing, appropriated  by  the  occasional  persons  who,  from 
time  to  time,  are  called  to  administer  them.  Nor  are 
they  appropriated  by  the  occasional  persons  who,  from 
time  to  time,  reap  the  benefit  of  them.  Nor  are  they 
appropriated  by  the  State  itself.  They,  in  fact,  are 
artificially  and  provisionally  placed  in  a  class  of  things 
which  are  incapable  of  being  owned. 

Things  which  belong  to  the  class  of  things  as  to 
which  ownership  is  impossible   may  cease  to  belong  to 


IGG  LAND   AS  A   SUBJECT   OF   OWNERSHIP. 

that  class,  either  by  separation  from  it,  or  by  the  arbitrary 
enactment  of  law.  Such  effects  are  produced  when  a 
college  is  allow^ed  to  exchange  its  lands,  or  w^hen  Govern- 
ment sells  its  military  or  naval  stores. 

Land,  as  a  subject  of  ownership,  might  indeed  be 
treated  as  belonging  to  the  class  of  things  set  apart  for 
the  service  of  the  State,  though  in  the  earlier  stages  of 
the  development  of  the  community  the  quantity  of  land, 
and  the  limited  number  of  uses  to  which  it  is  capable 
of  being  turned,  combined  to  keep  this  aspect  of  it  out 
of  sight.  Yet,  in  fact,  the  relation  of  a  State  to  its 
territory,  which  in  modern  times  enters  into  the  essential 
conception  of  the  State,  implies  that  the  land  cannot  be 
looked  upon,  even  provisionally,  as  a  true  subject  of  per- 
manent individual  appropriation.  This  view  obviously 
commends  itself  from  the  mere  facts  that  the  land  is  the 
only  indestructible  commodity  in  the  country  having  an 
existence  co-extensive  in  duration  with  that  of  the  State 
itself;  and  that  the  culture  and  produce  of  the  national 
soil  must  always  be  a  matter  of  urgent  State  concern, 
quite  independently  of  all  considerations  of  the  classes  of 
persons  to  whom,  from  time  to  time,  the  task  of  labouring 
on  the  soil  is,  as  it  were,  delegated. 

A  period  may,  however,  arrive  wdien  the  density  of 
the  population  and  the  fixed  limits  of  the  national  soil 
make  this  view  of  the  essentially  political  character  ot 
the  land  not  only  plausible  but  irresistible.  If  the  land 
is  looked  upon  as  susceptible  of  permanent  appropriation 
by  some  persons,  other  persons  must,  by  the  same  theory, 
be  regarded  as  possibly  excluded  from  it, — that  is, 
banished  from  the  territory  of  the  State.  Before  reach- 
ing such  a  crisis  as  this,  States  are  usually  arrested  by 
an  imperious  appeal  to  review  the  conditions  and  ten- 
dencies of  their  land  laws.  The  State  is  brought  face 
to  face  with   the   fact  that  the  spurious  notion  of  the 


LAND  AS  A   SUBJECT   OF   OWNERSHIP.  1G7 

possible  appropriation  for  ever  of  the  national  soil  by 
jjrivate  persons  has  made  alarming  progress  both  in 
popular  theory  and  practice.  The  cure  is  to  be  sought 
through  a  variety  of  changes  in  the  laws  of  ownership,  as 
well  as  through  more  direct  Governmental  action — such 
as  is  exhibited  in  the  imposition  of  land  taxes,  the  pre- 
servation of  commons,  and  the  facilitation  of  purchases 
of  small  plots  of  land  by  other  persons  than  those  who, 
by  the  mere  force  of  then-  wealth,  are  absorbing  the 
whole  soil. 

The  political  influence,  moreover,  of  large  landowners 
is  of  itself  a  sufficient  ground  for  a  watchful  jealousy 
on  the  part  of  the  State.  Whatever  be  the  issue  of  the 
controversy  as  to  the  economical  and  social  advantages 
of  large  and  small  farms,  and  however  undoubted  is 
the  importance  of  security  of  tenure  to  the  cultivators, 
still  the  paramount  dominion  of  the  State  over  every 
part  of  its  territory  is  a  fact  which,  in  a  high  condition 
of  social  progress,  cannot  be  emphasized  too  strongly,  or 
made  to  be  felt  too  universally  and  really. 

In  most  systems  of  law,  and  pre-eminently  in  those  of 
Rome  and  of  England,  the  word  thing  when  used  of  a 
object  of  ownership  has  undergone  a  peculiar  process 
of  expansion,  which  is  manifested  in  the  expression 
"  incorporeal  things."  The  original  use  of  the  word 
"  thing,"  or  "  res"  in  law  would  seem  to  limit  the 
meaning  of  the  words  to  visible  objects,  detached  por- 
tions of  the  material  universe.  The  very  necessity  of 
applying  the  epithet  "  incorporeal "  seems  to  imply  that, 
but  for  the  addition  of  the  epithet,  it  would  be  assumed 
that  a  "  thing  "  was  "  corporeal."  On  the  other  hand, 
the  word  "  res "  might  properly  be  translated  "  that 
which  can  be  an  object  of  thought ;  "  and  the  Roman 
lawyers  undoubtedly  employed  the  word  res  in  a  still 


IGS  INCORPOREAL  THINGS. 

wider  sense  than  the  English  lawyers  li;ive  ever  affixed 
to  the  word  thing. 

It  was,  in  fact,  discovered — so  soon  as  lawyers  began 
to  reflect,  either  for  judicial  or  political  purposes,  upon 
their  own  system  of  law  with  the  view  of  organizing 
and  digesting  it — that  certain  I'ights  had,  as  it  were, 
become  solidified  into  so  compact  and  distinct  a  body 
that  they  presented  themselves  to  the  imagination  almost 
in  the  light  of  tangible  objects.  It  was  thus  with  an 
"  obligation  "  in  Roman  law.  An  "  obligation  "  was  the 
sum  of  the  duties  that  arose  upon  the  making  of  a 
contract  or  the  commission  of  an  injury.  The  history  of 
the  term  seems  to  show  (as  Sir  H.  S.  Maine  has  ex- 
plained) that  the  meaning  of  it  at  one  time  included 
all  those  duties  and  all  the  corresponding  rights  ;  but  that 
this  latter  part  of  the  denotation  soon  slipped  away,  and 
the  term  ohligatio  had,  in  the  best  days  of  Roman  law, 
only  reference  to  duties.  But  these  duties  were  of  a 
definite  and  precise  nature,  bringing  to  the  person  in 
whose  favour  they  were  to  be  performed  corresponding 
advantages  or  i-ights  of  an  equally  definite  and  precise 
nature.  The  duties  or  the  rights  could  pass  from  one 
person  to  another  in  certain  clearly  ascertained  ways. 
They  could  under  certain  conditions  become  the  subjects 
of  engagements  and  contracts.  In  fact,  these  duties  and 
the  corresponding  rights  which  were  gathered  up  in  the 
term  ohligatio  were  capable  of  being  figured  to  the  mind 
as  external  objects  which  were  proper  matter  of  legal 
interference  for  the  regulation  of  their  succession  or 
transfer.  In  this  way  they  were  styled  7'es  /  and  in  the 
same  way  an  hcereditas,  or  sum  of  aU  the  rights  and  duties 
to  which  an  heir  succeeds,  and  a  "  right  of  action,"  were 
equally  called  res.  It  is  by  just  the  same  order  of 
thought  that  the  English  class  of  incorj^oi^eal  things  has 
been  created,  of  which  a  "  copyright "  may  be  taken  as 


COPYRIGHT.  109 

A  copyright  is  a  riglit  of  a  peculiar  kind,  and  cor- 
responds with  duties  lying  upon  all  persons  whatever, 
other  than  the  person  in  whom  the  right  vests,  to  abstain 
from  certain  acts,  such  as  the  printing  and  publishing 
cei-tain  determinate  matter.  A  copyright  cannot  be 
strictly  called  a  right  of  ownership,  because  there  is  no 
physical  substance  in  respect  of  which  the  right  is  exer- 
cised ;  but  in  many  points  it  is  analogous  to  a  right  of 
ownership.  It  is  held  against  all  the  world  ;  it  carries 
with  it  material  advantages  of  a  very  intelligible  and 
marketable  kind  ;  it  is  usually  subjected  to  many  of  the 
identical  legfal  incidents  as  to  succession  and  transfer 
which  appertain  to  rights  of  ownership.  It  is  not  sur- 
prising, then,  that  this  anomalous  sort  of  right,  instead 
of  being  treated  by  itself  as  an  exceptional  topic  of  law 
and  requiring  exceptional  provisions,  should  be  first 
denominated  a  thing,  that  is,  an  "  incorporeal  thing,"  and 
then  be  artificially  included  among  the  things  to  which 
laws  of  ownership  properly  apply.  The  same  account 
may  be  given  of  the  other  matters,  which,  in  English 
law,  are  included  in  the  class  of  incorporeal  things.  Such 
are  easements — ^as  rights  of  way,  and  rights  of  common — 
and  also  rights  to  tithe. 

It  will  be  noted  that  legal  classifications  of  things  in 
respect  of  ownership  may  be  founded  upon  two  diflereni, 
principles  of  discrimination.  These  are,  the  physical 
character  of  the  things,  and  their  artificial  legal  attributes. 
It  would  be  more  convenient  if  one  principle  alone  were 
adopted,  as  is  attempted  in  such  modern  codes  as  first 
divide  all  things  into  those  which  are  movable  and 
those  which  are  immovable,  and  then  lay  down  arbitrary 
legal  definitions  for  all  those  things  the  physical  mobility 
of  which  is  uncertain,  or  which,  for  political  purposes, 
it  is  held  expedient  to  treat  sometimes  as  movable,  and, 
at   other   times,   as   immovable.     The   only   purpose   of 


170  ANALYSIS   OF   A  RIGHT   OF   OWNERSHIP. 

classification  of  tliis  sort  is  to  express  compendiously 
the  legal  rules  applicable  to  certain  sorts  of  things  by- 
enclosing  them  under  a  common  name.  This  common 
name  may  be  furnished  in  a  variety  of  ways ;  or,  owing 
to  the  varying  situation  in  which  certain  things  are 
found,  it  may  be  impossible  to  include  them  under  any 
common  name,  and  they  must  be  arbitrarily  classed, 
sometimes  under  one  name  and  sometimes  under  another. 

The  second  (2)  main  topic  treated  under  the  head  of 
"Laws  of  Ownership"  is  the  description  of  Rights  of 
Ownership.  A  right  of  ownership,  in  itself,  however 
minute  it  is,  carries  with  it  a  legally  supported  claim  to 
use  a  definite  thing,  for  certain  more  or  less  definite 
purposes,  and  for  a  definite  or  indefinite  time.  The 
meaning  of  this  claim,  or  right,  is  that  all  other  persons 
whatever  are  forbidden  to  interfere  with  the  owner  in 
the  exercise  of  his  power  in  respect  of  the  thing  owned, 
up  to  the  point  to  which  the  limits  of  that  power  reach. 
Thus,  in  ascertaining  the  description  of  a  given  right  of 
ownership,  the  main  points  to  be  attended  to  are  the 
number  and  quality  of  the  uses  to  which  the  thing- 
owned  may  be  turned,  and  the  length  of  time  during 
which  the  enjoyment  of  the  right  lasts. 

Another  point  sometimes  also  insisted  upon  is  the 
capacity  of  transferring  the  right  to  another.  But  a 
distinction  has  here  to  be  made  between  the  relevancy 
of  this  topic  to  the  description  of  the  right  from  a 
purely  legal  point  of  view,  and  its  relevancy  to  the 
limitation  of  the  right  from  a  political  point  of  view.  If 
a  person  has  a  complete  capacity  to  transfer  a  riglit,  this 
is  a  reason,  politically  speaking,  for  rendering  that  right 
more  extended  and  unqualified  than  if  he  had  no  such 
capacity.  Indeed,  the  extension  of  a  right  follows,  almost 
as  of  necessity,  from  the  enlargement  of  the  j)owers  of 


ANALYSIS   OF  A  RIGHT   OF   OWNERSHIP.  171 

transfer.  But  this  is  a  political,  and  not  a  legal,  conse- 
quence. It  is  expedient  that,  if  a  person  has  the  power  of 
conveying  his  land  to  whom  he  will,  he  should  be  more 
free  to  cultivate  and  improve  his  land  as  he  pleases  than 
if  his  successor  was  determined  by  law.  But  this  con- 
sideration does  not  touch  the  essential  character  of  the 
right  itself.  The  right  to  convey  belongs  to  a  peculiar 
class  of  rights,  and  undoubtedly  enhances  largely  the 
value  direct  and  indirect  of  a  right  of  ownership  ;  but 
the  consideration  of  it  rather  belongs  to  the  next  head, 
that  of  "  Modes  in  wdiich  Rights  of  Ownership  are 
Acquired  "  than  to  the  present  one. 

It  is  obvious  that  the  leng-th  of  time  during  which 
a  right  of  ownership  lasts  is  likely  to  have  an  im- 
portant influence  on  the  uses  to  which  the  thing  o^\Tied 
may  be  turned.  If  the  time  is  definite  and  short,  those 
uses  will  be  strictly  defined  and  will  be  few  and  narrow. 
If  the  time  is  long,  or  indefinite — whether  long  or  short — 
the  uses  are  more  likely  to  be  numerous  and  multifarious. 
A  peculiar  phenomenon  is  produced  when  several  owners, 
or  at  least  two  or  more,  have  different  rights  of  owner- 
ship in  the  same  thing,  that  is,  are  entitled  to  turn  the 
same  thing  to  different  sorts  of  account.  A  common 
instance  of  this  is  presented  by  the  case  of  a  field  let  on 
lease  by  the  proprietor  to  a  farmer,  and  over  which  the 
occupier  of  a  neighbouring  farm  has  a  right  of  way. 
Here  the  right  of  the  proprietor  may  be  entirely  in 
suspense,  having,  as  its  substitute,  a  right  arising  out  of 
the  lease  against  the  farmer  alone.  The  rioht  of  the 
neighbouring  occupier  is  a  right  to  use  a  portion  of  the 
field  for  a  very  definite  and  restricted  purpose.  This  last 
has  been  called  a  "  fractional "  right,  or  has  been  said  to 
be  "  carved  "  out  of  the  greater  right. 

All  so-called  "  easements  "  or  "  servitudes  "  are, 
strictly   speaking,   of  exactly  this   same   nature.      The 


172  SERVITUDES   OR  EASEMENTS. 

person  or  persons  in  whose  favour  the  easement  exists 
have  a  right  to  detract  from  the  extent  of  another 
person's  right  to  use  a  certain  thing.  This  detraction 
may  take  two  different  forms.  It  may  either  imply  an 
active  intrusion  on  the  part  of  the  person  enjoying  tlie 
easement,  as  in  the  case  of  a  right  of  way,  of  pastui-e, 
of  drawing  water,  and  the  like ;  or  it  may  only  imply 
an  enforced  abstinence  on  the  part  of  the  person  against 
whom  the  easement  is  exercised  to  do  all  the  acts  he 
would,  but  for  the  easement,  be  entitled  to  do. 

The  latter  species  of  easement  is  illustrated  by  the 
case  of  a  right  to  light  or  to  air,  that  is,  a  right  that 
an  adjoining  proprietor  shall  not  raise  any  buildings  so 
high  as  to  interfere  with  the  light  or  air  to  which  the 
occupier  of  a  neighbouring  house  has  been  customarily 
entitled.  This  species  of  easement  has  been  called  nega- 
tive, and  the  other  ^positive  or  affi.Tmative.  One  main 
difference  between  the  two  is  that  the  latter  is  uninter- 
mittontly  exercised,  and  the  former  only  occasionally. 
Hence,  in  cases  where  the  actual  and  continuous  exercise 
of  a  right  is  needed  in  order  to  sustain  it,  as  in  prevent- 
ing the  right  of  another  accruing  through  what  is  called 
"  usurpation  "  or  "  prescription,"  mere  non-user  of  a  right 
for  long  intervals  of  time  may  be  no  evidence  of  relin- 
quishing the  right  in  the  case  of  a  positive  easement, 
whereas,  even  where  the  time  is  very  much  shorter, 
the  non-user  of  a  negative  easement,  that  is,  passive 
acquiescence  in  its  violation,  may  be  satisfactory  evidence 
of  its  relinquishment. 

Easements  and  servitudes  are,  in  fact,  only  species  of 
joint  proprietorship,  having,  however,  this  characteristic, 
that  the  person  in  whom  the  easement  vests  is  denoted 
solely  by  the  circumstance  of  his  occupying,  owning, 
or  residing  upon,  some  adjoining  place.  In  Roman  law 
a   certain   vacillation  was  exhibited  in  the  use  of  this 


SERVITUDES   OR   EASEMENTS.  173 

definition  ;  and  a  class  of  merely  personal  rights,  however 
the  person  in  whom  they  vested  might  be  determined, 
wer-e  sometimes  ranked  -svith  "servitudes,"  and  desisfnated 
"  personal  servitudes."  In  the  modern  codes  w^hich  are 
based  upon  the  Roman  law,  these  are  usually  classed  by 
themselves,  as  they  are  in  Justinian's  Institutes  (differ- 
ing as  these  do  in  this  point  from  the  Digest),  under  such 
special  names  as  Ususfructiis,  Usus,  and  Hahitatio ;  and 
the  relation  they  bear  to  true  servitudes  is  only  to  be 
judged  of  by  their  proximity  to  them  in  a  code. 

It  has  been  already  incidentally  noticed  that  not  only 
must  the  extent  of  a  right  of  ownership  be  measured 
in  some  degree  by  its  duration,  but  that  its  duration  is 
likely  to  determine  largely  its  actual  extent  while  it 
lasts.  He  who  owns  for  his  life  is  generally  allowed  a 
fuller  use  of  the  thing  owned  than  he  who  owns  for  a 
year  or  a  week ;  and  he  who  owns  subject  to  the 
possibility  of  his  right  being  determined  at  any  moment 
by  another  is  likely  to  be  very  much  more  restricted  in 
his  use  of  what  he  owns,  than  is  one  w^ho  owtis  for  a 
determinate  time.  Thus,  in  estimating  the  value  of  a 
right  of  o^vnership,  it  is  of  considerable  importance  to 
ascertain  whether  the  time  for  which  it  lasts  is  definite 
or  indefinite ;  whether  it  is  determined  by  some  event 
w^hich  may  never  happen,  as  the  fulfilment  of  some 
difficult  condition ;  whether  by  one  which  must  happen 
sooner  or  later,  as  the  close  of  one  or  more  lives;  or 
whether  by  the  voluntary  act  of  persons  other  than  him 
in  whom  the  right  vests.  These  different  contingencies, 
coupled  with  greater  or  less  powers  of  transfer,  give  rise 
to  all  the  varieties  of  absolute  ownership,  estates  upon  con- 
dition, life  estates,  estates  for  years,  and  estates  at  will. 

The  third  (3)  topic  of  Laws  of  0-wnership  is  that  of 

the  Mode  in  which  Eights  of  Ownership  accrue.     It  i.s 
9 


174  LAWS   OF   OWNERSHIP   OR  PROPERTY. 

obviously  of  the  very  essence  of  the  policy  by  which 
laws  of  ownership  are  enacted  that  as  little  doubt  as 
possible  should  adhere  to  the  question  as  to  how  rights 
of  ownership  come  into  being.  It  is  not  only  desirable 
that  actual  competition  should  be  arrested,  but  that  the 
very  notion  of  competitive  claims  should,  as  far  as 
possible,  be  excluded  at  the  outset.  This  result  can  only 
be  secured  by  rendering  as  familiar  as  possible  to  the 
popular  mind  the  legal  principles  upon  which  rights  of 
owTiership  come  into  being  or  are  passed  on  from  one  person 
to  another.  It  will  be  all  the  more  possible  to  render 
them  thus  familiar  if  the  legal  principles  themselves  are 
based  on  natural  tendencies  or  spontaneously  adopted 
practices,  the  law  only  interposing  to  give  to  these 
practices  certainty  and  increased  validity. 

Notwithstanding  this  important  aim,  the  law  which 
determines  the  conditions  upon  which  rights  of  owner- 
ship shall  accrue  is  likely  also  to  be  framed  in  accordance 
with  a  general  policy,  whether  wise  or  not.  Such  a 
policy  will  determine  how  far  it  is  desirable  to  favour  the 
accumulation  of  land  or  other  things  in  a  few  hands,  or 
to  withcb-aw  certain  things  for  long  periods  of  time  from 
the  general  market ;  how  far  it  is  desirable  to  encourage 
inventors  and  authors  by  granting  them  temporary 
monopolies  or  other  advantages ;  how  far  it  is  well  to 
recognize  the  claims  of  immediate  and  of  distant  relatives 
in  the  distribution  of  estates  upon  the  death  of  an  owner; 
and  how  far,  and  in  what  way,  the  practice  of  making  a 
Will  is  to  be  encouraged  and  provided  for. 

Thus  the  State  has  to  reconcile  several  different  aims 
in  constructing  that  part  of  its  law  of  ownership  whicli 
determines  the  modes  in  which  rights  of  ownership 
accrue.  It  has  to  comply,  as  far  as  possible,  with  well- 
rooted  and  spontaneous  practices  or  maxims ;  it  has  to 
select   such   simple   and   intelligible    methods    as    shall 


OWNERSHIP   AND   POSSESSION,  175 

easily  be  established  in  the  popular  memory,  and  become 
part  of  the  national  consciousness ;  it  has  to  carry  out 
its  own  policy  in  respect  of  the  distribution  of  the  land 
and  other  things,  as  based  upon  experience,  observa- 
tion, and  general  political  foresight. 

The  State  has  three  main  problems  to  solve ;  one,  as 
to  the  mode  in  vt^hich  rights  of  ownership  shall  come  into 
being  for  the  first  time,  that  is,  with  respect  to  things 
which  were  never  owned  before ;  another,  as  to  the  extent 
of  freedom  for  the  individual  wDl  in  transferring  rights 
of  ownership  ;  another,  as  to  the  proper  mode  of  legal 
interposition  in  restricting  the  possible  extent  of  such 
right.  The  general  policy  which  all  States  agree  to 
pursue  in  respect  of  the  solution  of  these  several  problems 
will  best  be  understood  by  a  consideration  of  what  is  the 
difficulty  it  has  to  meet  in  all  the  several  cases.  This 
difficulty  may  be  described  as  that  of  undisciplined  com- 
petition. There  is  a  competition  for  the  possession  of 
everything  whatsoever,  so  soon  as  the  exclusive  possession 
of  it  is  discovered  to  be  of  value.  There  is  a  fresh  compe- 
tition for  the  same  thing,  so  soon  as  the  owner — that  is,  a 
person  whose  possession  is  recognized  and  generally  sup- 
ported— has,  voluntarily  or  involuntarily,  surrendered 
possession.  And,  lastly,  there  is  an  endless  competition 
among  the  owners  of  different  things  with  respect  to  the 
amount  of  interference  with  each  other  allowable  in  the 
course  of  turning  to  account  the  things  they  severally 
own. 

Ownership  is  always  a  regulated  possession,  though  it 
is  commonly  much  beside.  Indeed,  this  description  is  of 
itself  wholly  inadequate,  as  there  are  innumerable  cases 
in  which  the  owner  of  a  thing  neither  has  the  possession 
nor  any  claim  or  right  to  the  immediate  possession  of  the 
thing.  Nevertheless,  it  is  only  through  the  medium  of 
"  possession  "  that  the  idea  of  ownership  can  obtain  any 


17G  OWNERSHIP   AND   POSSESSION. 

precision  at  all,  and,  in  fact,  ownership  must  almost 
always  have  dii-ect  reference  to  possession,  whether 
present  or  future.  It  is  important,  then,  to  investigate 
the  real  nature  of  j)Ossession. 

The  true  order  of  ideas  is  the  following : — In  ordinary- 
speech,  and  apart  from  any  legal  significance  attaching 
to  the  word,  the  possession  of  a  thing  is  the  merely 
holding  or  grasping  it.  If  the  thing  be  too  large  to 
hold,  possession  means  the  being  able  at  any  moment 
to  turn  it  to  all  its  possible  uses  or,  at  the  least,  to 
detain  it  so  effectually  as  to  prevent  any  one  else  turning 
it  to  any  possible  use.  Thus,  according  to  the 
illustrations  so  constantly  given,  he  wdio  has  the  key  of 
a  cellar  and  can  open  it  when  he  pleases,  is  the  possessor 
of  the  wine  in  it.  He  who  has  the  key  of  a  stable 
and  can  take  the  horse  out  when  he  pleases,  or  can 
prevent  any  one  else  taking  it  out,  is  the  possessor  of 
the  horse.  This  has  been  called  "natural  possession," 
and  has  in  itself  no  legal  idea  attached  to  it  whatever. 

It  is  clear  that  there  may  be  good  reason  for 
protecting  a  person  in  simple  possession  of  this  nature, 
and  for  giving  a  certain  amount  of  legal  validity  or  pro- 
visional legal  validity  to  claims  based  on  nothing  more 
than  possession  of  this  sort.  But  legal  recognition 
involves  definition,  and  obviously  some  possessors  of  the 
sort  above  described  demand  and  deserve  protection  in 
a  far  higher  degree  than  others  do ;  while  some,  as  the 
thief  or  robber,  do  not  deserve  it  at  all.  Thus,  when 
once  law  interferes  to  protect  and  regulate  possession, 
a  number  of  other  ideas  besides  that  of  merely  physical 
detention  are  necessarily  introduced. 

One  such  idea  is  the  mode  in  which  the  possession 
began,  whether  by  violent  extrusion  of  another,  by  secret 
tampering,  or  by  voluntary  gift, — or  even  by  mere  dis- 
covery, invention,   or  original  creation  {Justus  titulus). 


POSSESSION.  177 

Another  idea  is  the  state  of  mind  of  the  possessor, 
whether  he  believes  himself  to  be  in  the  right;  or 
suspects,  or  knows,  himself  to  be  in  the  wrong; ;  whether 
he  believed  that  the  person  who  gave  him  possessioai  was 
entitled  to  give  it,  or  knew  him  not  to  be  so  entitled 
(pond  fides).  A  third  idea  is  the  duration  of  the  posses- 
sion ;  whether  it  is  quite  recent,  so  that  no  expectations 
could,  from  lapse  of  time  alone,  be  reasonably  grounded 
upon  it;  or  whether  so  long  a  period  of  undisturbed 
possession  has  elapsed  that  great  inconvenience  and  even 
practical  injustice  would  ensue  from  disturbing  the 
possessor  in  the  peaceable  retention  of  that  which  he 
has  so  long  held. 

Two  main  occasions  occur  for  the  protection  which, 
in  one  way  or  another,  law  accords  to  possession ;  and 
as  one  or  the  other  of  these  occasions  is  in  view,  one 
or  more  of  the  above  subsidiary  ideas  becomes  the  im- 
portant element  in  discerning  the  true  character  of  the 
possession  in  question.  One  occasion  is  the  defence  of 
the  possessor  in  his  possession  for  the  purely  provisional 
purpose  of  ascertaining,  by  a  judicial  process,  his  legal 
and  moral  claims  to  be  further  or  even  constantly  so 
protected.  The  object  of  the  law  is  invariably  to  arrest 
competition,  and  most  of  all  forcible  violence.  But  in 
matters  of  possession,  extending  as  they  do  over  so 
vast  a  field  so  closely  connected  with  human  wants, 
feelings,  and  passions,  the  probabilities  of  conflict  arising 
out  of  questions  of  disputed  possession  are  incessant 
and  enormous.  A  mode  of  preventing  such  conflicts  is 
to  remove  them  from  the  arena  of  physical  force  to  the 
arena  of  law,  and  while  according  provisional  protection 
to  the  person  actually  in  possession,  and  even  reinstating 
him  if  dislodged  with  violence,  to  secure  that  the  merits 
of  the  rival  claims  be  judicially  investigated  without  loss 
of  time  {jjossessio  ad  interdicta). 


178  POSSESSION. 

The  other  occasion  for  recognizing  possession  is  when 
it  has  endured  a  long  time,  under  circumstances  in  which 
it  seems  more  conducive  to  the  general  welfare  to  support 
it  permanently  than  to  reinstate  a  former  possessor 
who  has  (it  may  be,  through  no  fault  of  his  own)  lost  his 
possession.  In  these  cases  the  length  of  time  that  must 
elapse,  the  degree  of  bond  fides  needed  in  the  present 
possessor,  and,  possibly,  the  mode  in  which  the  possession 
must  have  begun,  are  all  relevant  to  the  enquiry,  and  will 
be  definitely  fixed  by  the  general  Law  (jpossessio  ad 
usucapionem). 

The  position,  then,  of  a  person  thus  permanently 
protected  in  his  possession  is  the  following :— He  is 
treated  henceforward  not  merely  as  an  actual  possessor, 
and  as  deserving  of  mere  provisional  protection  and  re- 
instatement in  case  of  his  being  violently  extruded,  but 
he  is  now  able  to  establish  a  claim  to  lasting  possession 
against  any  one  else  whosoever.  He  not  only  has  what 
has  been  called  the  "  right  of  possession,"  or  the  casual 
right  to  have  claims  which  are  founded  on  the  mere  fact 
of  possession — if  not  merely  violent  and  forcible — 
judicially  and  peaceably  investigated,  but  he  has  the 
"  right  to  possess."  This,  of  course,  is  a  right  of  a  much 
higher  and  ampler  kind,  and  it  is  a  right  of  this  sort 
which,  at  the  earliest  stage  of  legal  progress,  is  exactly 
co-extensive  with  a  right  of  ownership,  or,  in  other  words, 
with  "  property "  or  domiiniiim,  two  terms  which  are 
frequently  opposed  to  the  term  2^ossess{on. 

It  happens,  however,  in  the  course  of  time,  owing  to 
economical  and  social  incidents,  that  a  person  who  is 
recognized  by  the  State  as  having  a  right  to  possess 
finds  he  can  turn  the  thing  to  which  his  right 
relates  to  better  account  by  putting  some  one  else  in 
possession  of  it  than  by  possessing  it  himself  For 
instance,   he  may   "own"   or  have    a.  right  to  possess,. 


OWNERSHIP   AND   POSSESSION,  179 

a  greater  number  of  fields  than  he  is  able  to  culti- 
vate by  his  own  unaided  exertions.  He  may  either 
pay  other  persons,  as  his  servants  or  labourers,  to 
cultivate  some  of  the  fields  on  his  behalf;  or  he  may 
allow  some  other  person  or  persons  to  cultivate  the  fields 
on  their  own  behalf,  merely  paying  him  a  certain  sum 
for  the  privilege.  If  a  bargain  of  this  last  kind  is 
made  and  recognized  by  law,  henceforth  the  actual 
cultivator  alone  has  the  right  to  possess,  and  not  the 
person  through  whom  he  claims.  So  if  the  owner  of 
a  thing  hands  it  over  as  a  security  for  money  borrowed, 
and  an  engagement  of  the  sort  is  recognized  by  the  law, 
it  is  the  lender,  and  not  the  borrower,  of  the  money 
who  henceforth,  for  a  time,  has  the  right  to  possess 
the  thing  which  is  given  as  a  security  for  it. 

Nevertheless,  in  both  these  typical  cases,  though  the 
original  owner  parts  for  a  time  with  his  right  to  imme- 
diate possession,  yet  he  retains  his  right  to  possession  at 
some  time  or  other ;  and  the  arrival  of  this  time  may, 
through  a  private  arrangement,  be  determined  by  the 
happening  of  all  kinds  of  events,  certain  or  uncertain. 
In  this  way  the  notion  of  ownership,  though  it  always 
relates  to  possession  at  some  time  or  other,  becomes 
detached  from  that  of  immediate  possession,  and,  in 
popular  speech,  is  often  contrasted  with  it. 

But  it  may  happen  that  a  lessee  or  pledgee,  in  the 
instances  above  cited,  who  has  acquired  from  the  owner 
a  right  to  immediate  possession,  may  part  with  or  acci- 
dentally lose  this  right ;  and  that  not  in  favour  of  the 
owner,  but  of  some  third  person.  In  such  a  case  it  is 
the  third  person  who  may  be  recognized  in  law  as 
having  the  right  to  immediate  possession;  while  the 
person  through  whom  the  possession  has  come  to  him 
may  have,  at  the  most,  a  right  to  future  possession  only  ; 
and  the  original  owner  a  right  to  possession  only  at  a 


180  OWNERSHIP  AND   POSSESSION. 

period  still  further  removed.  It  is  conceivable,  again, 
that  from  a  variety  of  causes  and  transactions,  even  the 
third  person  may,  in  his  turn,  part  with  or  lose  the 
right  to  possess,  and  only  retain,  at  the  most,  a  right  to 
possession  at  some  time  or  other. 

The  series  of  tenants  and  prospective  tenants  of  the 
same  thing  may,  indeed,  chance  to  be  an  indefinitely  long 
one ;  it  being  true,  however,  at  any  given  moment,  that 
there  is  only  one  person,  or  assemblage  of  persons,  who 
has  a  right  to  immediate  possession ;  and  that  there  is  one 
person  to  whom  the  right  of  immediate  possession  will 
ultimately  revert,  after  the  possession  of  every  one  else 
has  come  to  an  end.  This  last  person  might  be  styled, 
and  is  sometimes  styled,  the  "  owner ; "  though,  whether 
he  chances  to  be  called  so  or  not,  in  popular  speech,  will 
depend  upon  such  circumstances  as  whether  he  derives 
present  benefit  from  the  possession  on  the  part  of  others 
or  whether  there  is  a  probability  of  his  coming  into 
possession  himself  within  a  limited  time. 

The  ground  landlord  of  a  street  in  London  who 
receives  an  enormous  rent  from  the  tenants  immediately 
holding  under  him,  is  held  to  be  none  the  less  the  owner 
because  the  time  is  indefinitely  remote  at  which  he  or 
his  descendants  will  have  a  right  to  immediate  possession, 
supposing  the  rent  continues  to  be  regularly  paid,  and  the 
other  conditions  of  tenure  to  be  fulfilled.  On  the  other 
hand,  the  Crown,  from  whom  lands  are  sometimes  held  on 
a  tenure  involving  nothing  more  than  the  performance 
of  some  ancient  service,  is  not  considered  as  owner  of 
the  lands,  although,  in  default  of  the  service  being 
rendered,  the  Crown  might  have  a  right  to  immediate 
possession.  It  would  rather  be  said  that  the  owner  had, 
by  his  remissness,  forfeited  his  lands. 

The  results  of  this  investigation  are  that  ownership 
or  property  always   has  reference  to  possession,  either 


OWNERSHIP   AND   POSSESSION.  181 

immediate  or  prospective  ;  that  the  notions  of  actual  pos- 
session, of  a  right  to  immediate  possession,  and  of  a  right 
to  future  possession,  are  perfectly  clear  and  distinct ;  but 
that, — inasmuch  as  the  rights  of  an  owner  (in  the  primi- 
tive sense)  often  become,  in  the  progress  of  civilization, 
distributed  among  a  hierarchy  of  successive  persons, — the 
notion  of  ownership  is  only  made  clear  and  distinct  when 
it  is  treated  as  equivalent  to  the  right  to  possess  at  some 
time  or  other,  according  to  which  sense  of  the  expression 
there  may  be  several  contemporaneous  owners  of  the  same 
thing.  What  is  lost,  however,  by  want  of  conformity  to 
popular  speech  is  abundantly  gained  in  legal  precision. 
Hence  ownership  must  be  taken  to  mean  a  right  to 
possession,  guaranteed  and  protected — as  all  other  rights 
are— by  the  State,  whether  the  possession  be  immediate 
or  future  ;  and  any  person  who  has  such  a  right  to 
possession  might,  if  it  be  not  doing  great  violence  to 
common  language,  conveniently  be  called  an  owner,  it 
being  understood  that,  in  this  sense,  there  may  be  many 
owners  of  the  same  thing  at  the  same  time. 

The  difficulty  of  nomenclature  is  really  brought  about 
by  the  fact  that,  with  respect  to  large  classes  of  things, 
as  land,  houses,  farming  stock,  plant  for  manufactures, 
negotiable  instruments,  and  furniture,  a  distribution  of 
the  rights  included  in  ownership  is  far  more  common  than 
unity  of  ownership.  In  primitive  society,  unity  of  owner- 
ship is  for  all  things  almost  the  only  form  of  ownership 
known.  The  only  right  competing  with  the  owner's  is 
that  of  a  casual  possessor  w4io  has  accidentally  come  into 
possession,  or  who  has  bought  the  right  from  a  presump- 
tive owner  who  had  no  power  to  deal  with  it.  The 
opposition  of  owner  to  possessor  is  here  distinct  and 
valuable.  The  same  is  the  case  with  respect  to  many 
movable  things  in  civilized  countries  at  this  day.  As  to 
articles  of  personal  wear,  or  decoration,  or  things  of  a 


182  TEANSFER   OR   CONVEYANCE. 

very  perishable  nature,  the  owner  still  remains  clearly 
distinguishable  from  the  possessor.  But  with  respect  to 
most  other  things,  as  has  been  seen,  it  is  not  so.  There  is 
generally  a  series,  and  sometimes  a  long  series,  of  persons 
who  severally  have  rights  to  possession  immediate,  future, 
or  more  or  less  qualified  by  conditions.  It  may  thus 
happen  that  the  person  popularly  designated  as  the  oivner 
has  the  least  valuable  right  of  all.  Thus,  in  order  to 
ensure  precision  of  meaning,  either  a  new  term  must  be 
substituted  for  the  term  owner,  or  a  new  meaning  put 
upon  this  term. 

Hitherto  it  has  been  assumed  that  the  only  way  in 
which  a  person  having  a  right  to  possess  can  deal  with 
that  right  is  to  confer  upon  another  person  the  right  to 
immediate  possession,  while  he  reserves  to  himself  the 
right  to  future  possession,  the  time  and  conditions  of  such 
future  possession  being  determined  by  considerations  of 
mutual  convenience  between  the  parties.  But  it  may 
happen  that  the  original  owner  (for  he  may  be  called  so 
for  the  present)  wishes  to  make  a  marketable  commodity 
of  his  whole  right  to  possession,  both  immediate  and 
future.  The  State  may  or  may  not  recognize  transactions 
of  this  kind,  and  in  primitive  times  it  has  often  happened, 
from  one  cause  and  another,  that  such  transactions  are 
unknown  rather  than  unrecognized  But,  supposing  the 
transaction  is  recognized  or  is  beginning  to  be  recognized, 
the  State  will  probably  conceive  that,  with  respect  to  the 
things  of  the  greatest  public  importance  in  the  country, 
especially  land,  it  has  a  claim  that  the  transaction  shall 
be  as  public  and  notorious  as  possible ;  so  that  every  one 
may  know  who  it  is  who  has  a  right  to  possess,  and  that 
the  State  itself  may  know  who  it  is  who  is  henceforth  to 
be  called  upon  to  discharge  such  public  burdens  as  accom- 
pany the  acknowledged  ownership  of  certain  classes  of 
il linos.     These  considerations  are  enforced  by  the  desira- 


WILLS.  183 

bility  of  obtaining  the  best  and  most  conspicuous  proof  of 
the  reality  of  the  transaction  and  of  the  good  faith  of  the 
parties,  in  case  a  contest  should  ultimately  take  place  in 
a  court  of  law.  On  all  these  grounds  it  will  be  found 
that  a  great  part  of  the  history  of  the  law  of  o\vnership 
in  all  countries,  and  a  great  portion  of  the  law  itself,  is 
concerned  with  the  formalities  of  making  voluntary 
transfers. 

A  fresh  problem  is  presented  (though  it  really  solves 
itself  by  spontaneous  practices  long  before  it  is  consciously 
presented)  when  the  person  who  has  a  right  to  possess  dies, 
or  contemplates  the  imminent  fact  of  his  own  death.  This 
subject  is  connected  with  the  whole  matter  of  intestate 
succession  and  testamentary  disposition,  and  has  a  relation 
to  it  similar  to  that  connecting  it  with  contract  law  and 
the  law  regulating  family  rights. 

Sir  Bt.  S.  Maine  has  pointed  out  how  the  original 
notion  of  the  unity  and  perpetuity  of  the  family,  as 
an  undying  corporation,  explains  much  of  ancient  law 
relative  to  the  treatment  of  rights  on  the  death  of  the 
last  person  in  whom  they  vested.  They  pass  on,  as  of 
course,  to  the  next  surviving  representative  of  the  family, 
because  they  are,  in  fact,  vested  in  the  family  as  a  whole, 
and  not  in  any  single  member  of  it.  The  ixderfamilias 
acquii'es  in  course  of  time  the  right  to  sell  his  rights 
present  and  future  ;  but  he  is  bound  to  do  so  with  solemn 
formalities,  m  the  presence,  and  with  the  assent,  of  his 
clan,  who  would  (in  the  case  of  the  family  failing)  have 
the  ultimate  right  to  succeed  to  the  possession.  When 
the  notion  of  voluntary  disposition,  however  cumbrous 
and  troublesome  the  modes  of  it  be,  has  once  become 
familiar,  the  transition  is  easy  to  a  simplification  of  the 
forms,  to  partial  secrecy,  and  to  perfect,  or  nearly  perfect, 
freedom  of  alienation  in  life  and  of  testamentaiy  bequest. 

These  practices  of  succession  to  members  of  the. family. 


18-t  WILLS. 

in  t'lie  absence  of  a  WiU,  are  so  conducive  to  the  attain- 
ment of  a  number  of  important  moral  and  political 
ends,  that  it  is  not  surprising  they  are  so  universal 
and  have  undergone  such  extensive  developments. 
The  practices  are,  above  all,  strictly  promotive  of  what 
have  been  pointed  out  as  the  chief  objects  of  law,  tliat  is, 
the  sustenance  of  natural  groups,  and  the  i)romotion  of 
internal  cohesiveness  and  mutual  reciprocity  of  action  in 
those  groups.  Death  is  a  fact  that  menaces  the  existence 
of  the  State  by  disappointing  personal  expectations,  by 
bringing  about  discontinuity  and  breach  in  family  and 
social  relationships,  and  generally,  by  rendering  the  future 
uncertain  and  incalculable.  Law,  as  well  as  religion, 
strives  its  uttermost  to  triumph  over  death,  and  in  doing 
so  displays  its  most  signal  power.  Testimonies  to  the 
extent  of  this  power  might  be  gathered  from  the  extraor- 
dinary empire  over  the  imagination  possessed  by  the  insti- 
tution of  the  hoireditas  at  Rome  and,  in  a  less  degree,  of 
executors  and  administrators  in  England.  Through  the 
means  of  such  devices  as  these,  the  inconvenience  caused 
by  the  disappearance  from  the  midst  of  the  State  of  one 
of  its  members  is  reduced  to  the  smallest  possible. 

Possession  has  hitherto  been  looked  upon  as  of  the 
simplest  possible  kind,  and  as  including  nothing  more 
than  simple  detention  of  a  thing,  whether  tliat  detention 
is  or  is  not  accompanied  by  certain  mental  circumstances 
or  antecedents.  But  as,  in  course  of  time,  the  notion  of 
possession  of  this  elementary  sort  becomes  familiar,  it 
becomes  also  apparent  that  something  more  than  simple 
detention  must  be  included  in  it.  The  very  same  politi- 
cal grounds  that  entitle  a  bare  detainer  or  liolder  of  a 
thing  to  protection  by  the  State  also  entitle  to  similar 
protection  one  who  holds  a  thing  in  a  particular  way,  that 
is,  turns  it  to  certain  determinate  uses. 


MODIFICATIONS   OF   RIGHTS.  185 

Thus  a  pawnbroker  may  be  said  to  be  in  possession 
of  that  which  he  simply  keeps  locked  away  and  can  turn 
to  no  use  at  all.  A  lessee  of  land  is  equally  said  to  be  in 
possession,  when  he  enjoys  all  the  freedom  to  cultivate, 
and  even  to  sub-let,  which  his  landlord  or  the  original 
owner  has.  Similarly,  two  or  three  persons  may  be  said 
to  be  jointly  in  possession  of  the  same  thing  or  piece  of 
land,  though  obviously  the  freedom  of  use  enjoyed  by 
each  must  be  limited  by  that  of  the  rest,  and  must  be  very 
different  in  extent  from  what  it  would  be  if  he  alone  were 
in  possession.  Thus  when  possession  is  spoken  of  as  a 
fact,  it  must  always  be  explained  and  defined  with 
reference  to  the  special  circumstances  of  the  case.  The 
same  thing  may  be  possessed  by  several  persons  either  in 
the  same  or  in  different  waj's. 

It  is  obvious  that  so  soon  as  possession  of  these  varied 
sorts  becomes  protected  by  law  and  rendered  either  pro- 
visionally or  permanently  secure — in  other  words,  when 
possession  becomes  converted  into  ownership — it  results 
that  the  rights  which  arise  are  of  very  different  kinds 
and  degrees.  They  depend  for  their  pharacter  and  value, 
partly,  upon  the  number  and  quality  of  the  uses  to  which 
the  thing  to  which  they  relate  may  be  put ;  partly,  upon 
the  duration  of  time  for  which  they  will  continue ;  partly, 
upon  the  probability  or  certainty  of  their  actually  accru- 
ing, if  still  only  matters  of  futui'e  expectation.  The  num- 
ber and  quality  of  the  uses  to  which  a  thing  may  be  put 
will  often  be  found  to  be  (to  use  one  mathematical  expres- 
sion) a  function  of,  or  (to  use  another)  to  vary  proportion- 
ately with,  the  length  of  time  during  which  the  right  will 
last.  This  results  from  the  general  principle  that  the 
natural  limit  of  the  right  of  one  person  is  that  supplied 
by  the  rights  of  others.  Thus  a  weekly  tenant  is  less 
free  to  use  his  apartments,  or  to  injure  them,  than  a 
tenant  for  years  or  for  life  is;  and  where  the  reversionary 


186  MODIFICATIONS   OF  RIGHTS. 

interest  is  extremely  remote  and  uncertain,  tlie  freedom 
of  use  enjoyed  by  one  or  more  of  the  tenants  is  scarcely 
distinguishable  from  that  which  would  be  enjoyed  by  the 
reversioners,  or  by  the  ultimate  owner  himself. 

The  most  general  restrictions  on  the  extent  of  all 
rights  of  ownership  are  those  supplied,  first,  by  the  co- 
existing rights  of  surrounding  owners,  and  secondly,  by 
the  general  interests  of  the  whole  State.  The  former  class 
of  restrictions  are  illustrated  by  the  generally  recognized 
legal  duty  of  not  interfering  with  the  light,  air,  and 
other  healthftd  conditions  which  are  essential  to  the  en- 
joj'^ment  by  a  neighbour  of  his  own  rights.  By  the  well- 
Icnown  principle  of  "  servitudes  "  or  "  easements,"  a  special 
right  even  to  invasion  of  the  rights  of  others  in  these  and 
some  other  respects  may  be  acquired.  The  principle 
universally  applied  to  ascertain  the  existence  and  extent 
of  such  exceptional  rights  is  that  of  prior  possession. 
The  evidence  of  such  possession  is  derived  from  such  facts 
as  lapse  of  time,  absence  of  dispute  and  litigation,  or  else 
positive  consent  on  the  part  of  the  owner  whose  rights 
are  presumptively  encroached  upon.  Some  of  these  acts 
of  encroachment  cannot  so  well  be  called  injuries  to  the 
rights  of  others  as  mere  diminutions  of  them,  or  as  they 
have  sometimes  been  called  "  fractional  rights."  Such  are 
the  great  class  of  rustic  servitudes  in  Roman  law,  taking 
the  various  forms  of  rights  of  way,  rights  of  making  or 
using  water-courses  and  aqueducts,  and  rights  of  pastur- 
ino-  cattle.  Each  of  these  rio-hts  is  a  good  illustration 
of  the  various  forms  which  possession  takes  as  society 
progresses,  as  well  as  the  fruitfulness  of  the  fact  of 
possession  in  founding  and  guarding  rights  of  ownership. 

The  subject  of  the  division  of  easements  or  servitudes 
has  been  already  treated.  It  was  seen  that  they  have 
been  divided  into  two  classes.  One  includes  those  rights 
in  which  the  burden  on  the  adjoining  owner  consists  in 


FRACTIONAL   IIIGHTS.  187 

his  own  free  action  being  simply  impeded,  without  the 
right  of  the  other  being  positively  extended.  Such 
rights  were  "  urban  servitudes,"  as  those  which  prevent 
the  adjoining  owner  raising  his  chimneys  beyond  a  certain 
height,  or  otherwise  building  obstructions  to  his  neigh- 
bour's light  or  view,  or  setting  up  a  business  likely  to  be 
noxious  to  his  neighbour's  health.  The  other  class  of 
fractional  rights  includes  those  in  which  the  person  in 
whom  the  right  vests  is  thereby  enabled  aggressively  to 
invade  his  neighbour's  premises  and  to  do  acts  there 
which,  but  for  that  right,  it  would  not  be  permissible  for 
him  to  do.  Such  rights  are  the  "rustic  servitudes" 
already  mentioned.  These  two  classes  of  servitudes  have 
been  termed  (as  was  said  in  another  connection)  negative 
and  affirmative  respectively. 

It  was  seen  that  the  evidence  of  that  continuous 
possession  which  alone  can  ground  the  right  must,  in  the 
case  of  negative  servitudes  (in  which  possession  goes  on 
without  any  succession  of  acts  manifesting  it)  be  of  a 
different  character  from  that  needed  in  the  case  of  affirm- 
ative servitudes,  where  the  possession  is  in  itself  a  con- 
tinuously repeated  act,  and  therefore  this  repetition  is, 
as  it  were,  its  own  and  its  only  evidence.  Thus  mere 
non-user  of  an  affirmative  servitude  for  a  great  length  of 
time  might  be  very  insufficient  evidence  that  the  posses- 
sion was  intentionally  relinquished  and  would  not  be 
resumed,  because  interruptions  in  the  continuity  of 
possession  form  an  essential  characteristic  of  this  sort  of 
servitude.  Whereas,  in  the  case  of  non-user  of  a  nega- 
tive servitude,  the  mere  omission  to  use  it,  if  accompanied 
by  knowledge  on  the  part  of  the  owner  interested  in 
disputing  it, — such  knowledge  being  testified  by  adverse 
acts  inconsistent  with  the  continuance  of  the  right — might 
in  itself  be  quite  sufficient  to  prove  its  loss  or  abandon- 
ment or  to  disprove  the  alleged  fact  of  its  acquisition. 


188  POLITICAL   LIMITATIONS. 

The  limitation  of  rights  of  ownership  above  noticed 
as  due  to  the  interests  of  the  State,  takes  the  form, 
partly,  of  general  principles  forbidding  the  use  of  things 
in  certain  modes  proved  by  experience  to  be  publicly 
noxious;  as,  for  instance,  the  carrying  on  dangerous  trades 
and  occupations  without  due  precautions,  the  building 
houses  of  a  style  not  conducive  to  public  health  or  to  the 
ornamentation  of  a  town,  the  keeping  and  dealing  in  house- 
breaking tools  or  explosive  weapons,  the  using  houses  for 
immoral  purposes  and  the  like  :  partly,  of  restrictions  and 
deductions  occasioned  by  the  necessities  of  the  revenue, 
as  in  the  case  of  periodical  taxation,  excise,  and  regula- 
tions for  the  prevention  of  coining  and  of  fraud  by  pawn- 
brokers, money-lenders,  bankers,  stock-brokers  and  like 
persons  standing  in  a  quasi-public  capacity ;  partly,  of 
the  constant  liability  to  which  every  owner  is  exposed  to 
have  his  goods  or  lands  either  confiscated  for  the  public 
good  or,  at  the  best,  exchanged  for  other  things  of  an 
equal  market  value  but  of  a  different  quality. 

It  has  thus  been  seen  that  ownership  is  a  form  of 
regulated  and  secure  possession  either  present  or  pro- 
spective, and  that  the  essential  character  of  the  legal 
interference  which  converts  possession  into  ownership 
is  the  creation  and  maintenance  of  rights.  The  mainte- 
nance of  rights  of  ownership,  when  once  called  into  being, 
is  naturally  a  most  impoiiant  part  of  the  activity  of  the 
State ;  the  more  so,  as,  historically  speaking,  it  is  through 
this  activity  in  the  judicial  department  that  the  reality 
of  the  rights  themselves  first  becomes  matter  of  distinct 
consciousness. 

The  modes  which  the  maintenance  of  rights  of  owner- 
ship takes  may  be  addressed  either  to  preventing  probable 
infractions  of  rights,  or  to  punishing  and  obtaining  com- 
pensation for  actual  infractions.     Or  again,  they  may  be 


rROTECTION    OF   OWNERSHIP.  189 

addressed  to  the  protection  of  the  forms  and  solemnities 
by  which  rights  of  ownership  are  susceptible  of  being- 
conveyed  from  one  person  to  another  either  in  life  or  on 
death.  Then  again,  special  machinery  may  be  devised 
for  the  prevention  of  an  injury  to  a  right  of  ownership 
immediately  the  injury  has  begun  and  before  it  has 
proceeded  far.  The  Roman  Interdict  and  the  English 
Injunction,  as  applied  in  some  cases,  are  illustrations  of 
this  last  variety  of  procedure. 

Lastly,  the  proceeding's  may  be  either  civil  or  criminal 
or  both,  according  as  the  injury  seems  to  belong  to  a  class 
in  which  the  interest  of  the  owner  is  more  immediately 
concerned  than  the  interest  and  good  order  of  the  State, 
or  the  latter  more  than  the  former,  or  both  seem  equally 
concerned.  Then  the  remedy  may  either  take  the  form  of 
actual  restitution,  where  that  is  possible,  or  of  compensa- 
tion by  payment  of  money,  or  of  mere  punishment  with 
or  without  compensation. 


CHAPTER  IX. 

LAW  OF  CONTRACT. 

The  purpose  of  the  Law  of  Contract  is  to  impart  stability 
and  security  to  certain  temporary  relationships  with  one 
another  which  men  spontaneously  frame  for  themselves. 
The  relationship  between  two  contractors  differs  from  the 
relationship  of  family  life  in  the  spontaneity  which 
originates  it,  and  in  the  freedom  which  the  parties  enjoy 
for  the  purpose  either  of  describing  and  modifying  its 
terms  or  of  annulling  it  altoo-ether.  Thus  the  essential 
quality  of  the  relationship  implied  in  Contract  is  freedom 
in  respect  of  its  original  creation ;  in  respect  of  the  de- 
scription of  its  nature  and  of  its  terms  ;  and  in  respect  of 
the  mode  and  period  of  its  conclusion.  The  real  policy 
which  dictates  a  law  of  contract  is  that  of  giving  the  same 
reality  and  consistency  to  the  groups  which  evolve  them- 
selves through  the  play  of  social  and  economic  life  as 
primitive  law  gives,  in  the  manner  already  described, 
to  those  groups,  of  which  the  gradual  formation  is  the 
indispensable  condition  precedent  to  the  very  existence 
of  national  life. 

It  happens,  indeed,  that — though  the  essential  charac- 
teristics of  these  new,  or,  as  they  may  be  called,  voluntary 
groups,  is  freedom — law  cannot  affect  to  regulate  their 
construction  and  watch  over  their  fortunes  without,  to  a 


ORIGIN    OF    CONTRACT.  191 

certain  extent,  impairing  that  freedom.  A  law  of  contract 
commences  by  restricting  the  practice  of  contract,  though 
its  influence,  in  the  long  run,  is  vastly  to  extend  that 
practice.  Similarly,  at  constantly  recurring  stages,  law- 
is  called  upon  to  put  fresh  obstacles  in  the  way  of  con- 
tractors, and  yet  the  result  and  sole  justification  of  these 
obstacles  is  an  indefinitely  increased  confidence  in  the 
making  of  contracts. 

The  fact  of  contract,  as  looked  at,  for  a  moment,  quite 
independently  of  law,  is  due  to  the  natural  conditions  of 
social  and  economic  life.  A  moderately  developed  social 
existence  cannot  be  attained  without  accumulation  of 
wealth,  and  wealth  cannot  be  accumulated  without  co- 
operation, division  of  labour,  and  mutual  reliance.  Mutual 
reliance  implies  a  steady  belief  in  the  future  conduct  of 
others;  and  also  in  the  future  conduct  of  oneself,  that  is 
self-reliance.  It  is  only  by  long  experience  that  the 
possibility  of  such  mutual  reliance  can  become  a  familiar 
notion,  and  the  social  and  economic  value  of  it  be  pro- 
foundly appreciated.  In  the  actual  history  of  a  State  it 
will  probably  happen  that  the  notions  of  truth,  of  trustful- 
ness, and  of  good  faith,  are  evolved,  not  only  through 
progressive  experience  of  their  social  fruitfulness,  but  still 
more  through  the  more  or  less  elevated  doctrines  of 
religious  teachers,  the  denunciations  of  prophets,  the  calm, 
warning  voice  of  philosophic  sages. 

But  the  force  of  this  last  class  of  influences  is  really 
due  to  the  fact  of  the  absolute  harmony  between  good 
faith  and  the  constitution  of  man  as  a  social  being.  It 
is  to  dim  glimpses  of  this  fact,  both  in  the  seer  who 
exhorts  and  in  the  populace  who  listen,  that  the  actual 
efficiency  of  the  lesson  is  really  due.  Man  commences 
by  practically  trusting  his  fellow  man ;  he  goes  on  by 
finding  it  is  good  and  useful,  as  well  as  safe  to  trust 
him;  he  hears  the  voice  of  his  best  teachers  telling  him 


192  NATURE   OF  CONTRACT. 

that  he  was  born  to 'trust  and  to  be  trustworthy ;  and  at 
every  step  he  takes  in  trusting  others  and  in  showing 
himself  worthy  of  trust,  he  becomes  increasingly  con- 
scious of  an  enlargement  and  satisfaction  of  his  nature, 
which,  to  him  at  least,  is  unmistakable  evidence  of  trust- 
fulness being  that  to  which  his  true  constitution  adapts 
and  calls  1dm. 

In  every  case  of  a  contract  between  two  persons,  one 
of  them,  at  the  least,  binds  his  acts  in  the  future,  and  the 
other  knows  that  he  does  so  and  directs  his  own  conduct 
in  accordance  with  that  knowledge.  For  the  person  so 
relying  upon  the  other's  future  action,  so  much  at  least  of 
the  cloud  of  uncertainty  that  ever  hangs  over  the  future 
is  lifted.  For  the  vacillation  and  changeableness  of  human 
action  and  will,  the  certainty  of  a  sequence  of  physical 
nature  is  substituted.  The  person  who  thus  engages  to 
bind  his  own  future  acts  may  be  induced  to  do  so  by  a 
variety  of  different  considerations.  He  may  be  induced 
to  make  the  engagement  by  way  of  reward  for  a  service 
already  rendered  him,  or  by  way  of  reciprocity,  as  the 
price  of  some  service  done  or  gift  presented  at  the  time, 
or  as  the  price  of  some  service  to  be  done  in  tlie  future. 
In  the  last  case  each  of  the  persons  binds  his  future  acts, 
and,  though  the  transaction  is  one,  both  the  rights  and 
the  duties  arising  from  it  are  twofold. 

Such  is  the  transaction  termed  "contract,"  in  its 
essence,  and  in  the  absence  of  law.  The  result  of  every 
contract  is  to  create  (as  has  been  already  intimated)  a 
group  of  persons  wholly  apart  from  all  similarly  formed 
groups,  and  having  their  mutual  relations  determined  by 
a  rule  which  has  been  voluntarily  evoked.  Such  groups, 
only  in  a  less  degree  than  the  natural  domestic  groups, 
are  of  extreme  importance  to  the  vitality  and  develop- 
ment of  the  nation :  and  yet,  like  those  groups,  when 
standing  alone  and   unprotected,   they   are,  from   their 


PRIMITIVE   CONTRACTS.  193 

very    minuteness    and   isolation^   peculiarly  exposed   to 
catastrophes. 

Sir  H.  S.  Maine,  in  his  "  Ancient  Law,"  has  described 
how  laboriously  and  almost  painfully  the  habit  of  making 
the  commonest  contracts  is  built  up  in  early  society.  A 
notion  of  the  frailty  of  the  engagement  seems  to  hang 
round  every  stage  of  it,  and  nothing  but  the  most  resolute 
efforts  of  the  whole  society  can  give  it  even  the  appear- 
ance of  enduring  validity.  These  efforts  take  the  form  of 
a  necessity  for  a  number  of  witnesses,  for  cumbrous  cere- 
monies, for  punctilious  and  exactly  performed  gestures.  If 
an  error  is  made  in  the  formalities,  the  obligation  is  gone. 

Thus  it  is  not  so  much  that  law  interferes  with  the 
making  of  contracts  because  of  their  imperfect  security 
when  only  dependent  on  moral  sanctions,  as  that  the  same 
state  of  society  which  gives  birth  to  primitive  contract  does 
at  the  same  time,  and  from  like  causes,  give  birth  to  that 
legal  circumscription  of  contracts  which  alone  renders  them, 
in  such  social  circumstances,  even  so  much  as  possible. 
Historically  speaking,  there  could  have  been  no  period  at 
which  contract  existed  and  yet  a  law  of  contract  did  not ; 
because,  at  the  era  of  society  in  which  alone  the  engage- 
ments implied  in  making  contracts  are  possible,  legal 
rules  and  institutions  are  the  only  cementing  bonds  which 
keep  the  society  together,  and  the  notion  of  a  twofold 
system  of  moral  and  legal  rules  side  by  side  is  wholly  alien 
to  that  stage  of  civilization. 

It  is  true,  however,  that,  throughout  the  whole  course 
of  national  development,  the  relations  to  each  other  of  the 
moral  and  the  legal  aspects  of  contract  are  undergoing  in- 
cessant change,  and  sometimes  curious  alternations.  In  the 
first  stage,  as  has  been  seen,  the  moral  and  the  legal  contract 
are  not  separable  from  one  another.  In  the  next  stage,  the 
moral  contract  has  disengaged  itself  from  the  legal  con- 
tract, and  law  either  singles  out  a  number  of  common 


194  LAW  OF  CONTRACT. 

contracts  which  it  converts  into  legal  contracts — so  makinj^* 
them  available  in  courts  of  justice — or  it  is  ready  to  con- 
vert all  contracts  into  legal  contracts,  only  excepting  a 
few,  on  the  grounds  of  it  being  impolitic  to  give  them 
encouragement.  The  former  of  these  methods  is  that 
which  was  adopted  at  Rome,  and  the  latter  is  that  adopted 
in  England.  At  a  stage  still  further  on,  the  legal  notion 
of  contract  encroaches  more  and  more  on  the  moral  one, 
to  such  an  extent  indeed  as  almost  to  produce  a  parallel 
with  the  earliest  stage  of  all,  when  the  legal  surroundings 
were  of  far  greater  moment  than  the  moral  and  mental 
condition  of  the  parties.  At  this  last  stage,  the  proved 
frequency  of  frauds  and  the  excessive  multiplication  of 
contracts,  in  a  condition  of  active  commercial  intercourse, 
enforce  the  necessity  of  prescribing  formalities  with  in- 
creased rigour  and  of  punishing  the  neglect  of  them  with 
nullity.  This  is,  in  effect,  going  a  great  way  towards 
completely  substituting  the  legal  conception  of  contract 
for  the  moral  one. 

The  general  relation  of  a  legal  to  a  moral  contract 
being  ascertained  both  from  a  scientific  and  from  an 
historical  point  of  view,  the  next  question  that  presents 
itself  relates  to  the  necessary  elements  of  which  a  legal 
contract  is  composed. 

It  has  been  seen  that,  apart  from  all  considerations  of 
law,  a  contract  or  agreement,  in  the  least  exact  sense, 
involves  the  presence  of  two  persons,  one  of  whom  binds 
his  future  acts  in  a  definite  way,  and  the  other  confidently 
relies  upon  his  doing  so.  The  acts  may  be  of  a  more  or 
less  determinate  number  and  kind,  covering,  indeed, 
almost  all  the  transactions  in  which  it  is  possible  for 
human  beings  to  be  engaged ;  and  the  future  period  to 
which  the  acts  relate  may  be  either  near  at  hand  or  very 
far  removed,  or  may  be  recurrent  at  stated  intervals  of 
time,  or  may  be  made  to  depend  upon   the   contingent 


ANALYSIS   OF  A  LEGAL   CONTRACT.  195 

occurrence  of  future  events,  which  are  either  certain  to 
happen  some  time,  or  may  possibly  never  happen  at  all. 

Hence  the  first  task  that  occupies  the  law-giver  in 
taking  contracts  under  his  control  is  to  determine  whether 
any  restriction  whatever  shall  be  put  upon  the  kinds  of 
future  acts  as  to  which  persons  shall  be  permitted,  with 
the  sanction  of  law,  to  bind  themselves.  The  solution  of 
this  question  must  partly  depend  upon  the  solution  of 
another,  what  restrictions  (if  any)  ought  to  be  put  upon 
the  quality  of  the  persons  who  are  pennitted  to  bind 
themselves.  Though  these  two  questions,  however,  are 
on  some  sides  of  them,  closely  related  to  each  other,  they 
are  none  the  less  capable  of  being  treated  distinctly. 

This  mode  of  treatment  has  generated  two  great 
branches  of  the  law  of  contract,  as  exhibited  in  all  ad- 
vanced States,  the  one  containing  an  enumeration  of  the 
persons  who  may  or  may  not  bind  themselves  by  legal 
contracts,  and  the  other  dealing  with  the  principle  upon 
which,  in  any  particular  State,  persons  are  not  allowed 
to  invoke  the  sanction  of  law,  in  binding  themselves  to 
do  or  not  to  do  certain  specified  or  generally  described 
acts.  What  particular  acts  or  forbearances  happen  to  be 
excluded  from  being  the  possible  subject  matter  of  legal 
contract  may,  for  a  long  course  of  time  before  the  preva- 
lence of  conscious  legislation,  depend  mostly  on  accident, 
or  on  what  seems  to  be  such.  But  experience  gradually 
dictates  the  sort  of  acts  and  engagements  which  alone  can 
usefully  be  recognized  by  the  State  when  it  betakes 
itself  to  enforce  the  agreements  which  men  make  with 
each  other  for  their  mutual  convenience. 

The  sole  gTound  and  justification  of  such  State  inter- 
ference is  to  correct  the  bad  or  disastrous  consequences 
that  follow  from  an  occasional  breach  of  faith  in  a  con- 
dition of  society  in  which  good  faith  is  universally 
expected  and  relied  upon.     It  is  monstrous  to  suppose 


193  IMMORAL  CONTRACTS. 

that  the  habitual  observance  of  legal  contracts  is  solely 
or  mainly  due  to  the  legal  penalties  which  attend  non- 
observance.  A  nation  of  habitual  contract-breakers  could 
not  have  sufficient  coherence  to  organize  or  to  enforce  a 
law  of  contract  and,  like  Montesquieu's  "  Troglodytes,"  in 
the  utter  absence  of  mutual  respect  or  self-respect,  they 
must  all  perish  miserably.  Nevertheless  it  is  true  that  a 
law  of  contract  largely  contributes  towards  the  mainte- 
nance of  good  faith  in  the  keeping  of  contracts  in  many 
other  ways  than  by  the  penalties  it  inflicts,  or  by  the 
compensation  it  exacts.  Law  does  for  the  region  of 
contract  what  it  does  for  that  of  family  life,  of  property, 
and  of  Government.  It  imparts  definiteness  and  objec- 
tive reality  to  what  otherwise  is  latent,  desultory,  and 
intermittent.  It  arrests  attention,  and  publicly  addresses 
the  individual  conscience  with  a  voice  which  the  din  of 
daily  life  cannot  smother.  It  gives  precision  to  action, 
and,  while  checking  unreasonable  expectations,  gives 
calmness  and  security  to  those  that  are  well  founded. 

But  it  is  obvious  that  law  would  only  defeat  its  own 
ends  by  supporting  contracts  or  agreements  of  certain 
kinds.  It  is  no  doubt  a  critical  and  perilous  task  for 
law  to  venture  upon,  to  attempt  to  distinguish  a  moral 
from  an  immoral  object,  or  to  determine  what  sorts  of 
contracts  are,  in  the  long  run,  prejudicial  to  the  truest 
interests  of  the  State.  Legislators  have  at  all  times 
committed  the  grossest  errors  in  attempting  legal  dis- 
tinctions of  this  nature,  and  their  best  excuse  is  that  they 
have  faithfully  reflected  the  ignorance  and  the  prejudices 
of  their  age.  Even  now,  when  slave-purchasing  and  slave- 
holding  are  illegal  by  the  law  of  England,  it  is  judicially 
doubted  whether  a  contract  for  the  purchase  of  slaves 
made  in  a  country  where  slave-purchasing  was  legal, 
ought  or  ought  not  to  be  supported  in  this  country. 
Slavery  is  one  of  those  institutions  as  to  the  absolute 


IMMORAL   CONTRACTS.  197 

immorality  of  whicli  even  yet  the  public  mind  of  all 
civilized  States  cannot  be  said  to  be  completely  made  up. 

Thus,  even  on  the  admitted  principle  that  contracts 
must  not  be  supported  if  immorality  is  thereby  directly 
encouraged,  the  determination  of  what  kind  and  amount 
of  immorality, — as  well  as  of  what  sort  of  encouragement 
of  it, — is  contemplated  when  the  usual  support  of  law  is 
refused  to  an  otherwise  valid  contract,  involves  questions 
of  the  utmost  complexity.  The  general  result  has  been  in 
modern  Europe  and  in  the  States  of  America,  that  the 
only  cases  in  which  legal  support  is  refused  to  a  contract 
on  the  oTound  of  its  object  being  immoral  is  where  that 
object  belongs  to  a  small  and  definite  class  of  immoral 
acts  distinctly  repudiated  by  the  principles  and  general 
practice  of  all  civilized  countries,  or  where  the  object  is 
directly  in  the  face  of  some  specific  rule  of  law  forbidding 
its  pursuit. 

There  is  better  and  more  obvious  reason  for  the  inter- 
ference of  law  in  the  matter  of  the  persons  who  make 
contracts  than  for  its  interference  in  that  of  the  subject 
matter.  A  contract  is  in  all  cases  an  act  whereby  a 
person  binds  his  future  acts,  though  it  is  also  more  than 
this,  involving  as  it  does  the  consent  of  another  person, 
who  by  another  act  (unless  the  two  acts  happen  to  be 
simultaneous,  and  therefore  to  bear  the  appearance  of  a 
single  act  alone)  signifies  his  knowledge  of,  and  reliance 
upon,  the  exact  degTee  in  which  the  first  person  has 
restricted  his  future  freedom.  It  is  the  two  parties 
together  who  are  said  to  make  the  contract.  The  rights, 
indeed,  may  be  all  on  one  side  and  the  duties  all  on  the 
other,  or  both  persons  may  bind  their  future  acts,  each 
knowing  and  relying  upon  the  other  doing  so,  and  so 
there  may  be  both  rights  and  duties  on  either  side. 

It  thus  appears  that,  in  order  to  make  a  legal  contract 
or,  in  fact,  any  fair  contract,  the  persons  must  not  only 


198  CAPACITY   FOR  MAKING  A  CONTRACT. 

have  all  the  capacity  essential  to  do  a  voluntary  act,  but 
they  must  also  have  a  sufficient  knowledge  of  the  world 
and  of  themselves  both  to  know  the  exact  meaning  and 
character  of  the  acts  to  which  the  contract  has  reference, 
and  the  ability  which  one,  or  other,  or  both  of  them  has 
to  do  or  to  abstain  from  the  acts  contemplated.  Now, 
considering  the  enormous  range  of  subjects  over  which 
the  possibility  of  making  contracts  extends,  from  the 
simplest  pui'chase  with  a  few  hours'  credit,  to  the  carry- 
ing out  of  the  most  gigantic  commercial  enterprises,  it 
is  manifest  that  the  doctrine  of  personal  capacity,  in 
respect  of  contract,  must  be  an  elastic  doctrine,  admitting 
of  adaptation  to  the  particular  varieties  of  contracts 
which  happen  to  be  concerned. 

From  the  mere  statement  of  the  nature  of  a  contract 
it  appears  that  the  making  of  even  the  simplest  contract 
involves  higher  mental  qualities  than  are  necessarily 
concerned  in  dealing  effectually  with  property,  or  in 
committing  a  crime  without  exculpatory  cii'cumstances. 
The  vitiating  or  disabling  incidents  to  be  guarded 
against  in  estimating  the  validity  of  a  contract  are  (1) 
Incapacity  to  do  a  voluntary  act,  (2)  Inexperience,  (3) 
Fraud,  and  (4)  Disease  afi'ecting  the  reality  or  clearness 
of  intention,  or  otherwise  perverting  the  patient's  view 
of  things,  so  as  to  present  them  in  distorted  relations  with 
each  other.  The  general  causes  which  give  rise  to  such 
facts  or  conditions  as  these  are  known  to  be  extreme  youth 
(or  infancy),  youth  further  advanced  and  at  different  stages, 
insanity,  and  such  a  combination  of  circumstances  as, 
from  a  person's  peculiar  situation,  render  him  especially 
exposed  to  the  solicitations  of  fraud.  Sometimes  the  situa- 
tion of  a  person  is  permanently  so  unfavourable  to  the 
exercise  either  of  freedom  of  the  will  in  action  or  of 
balanced  judgment  in  forming  an  intention,  that  the  law 
treats   a   person   in    such    a    situation   as   permanently 


CAPACITY   FOR  MAKING  A  CONTEACT.  199 

incapacitated;  and  a  similar  doctrine  is  sometimes 
extended  to  the  contracts  of  two  persons  with  one  another, 
where  their  mutual  relations  render  the  good  faith  of  one 
of  them  so  open  to  temptations  as  to  call  for,  at  the  least, 
excessive  judicial  vigilance. 

The  peculiar  protection  granted  at  one  period  of 
Roman  Law  to  heirs  against  the  extortion  of  money- 
lenders, and  also  to  women  against  their  own  assumed 
weakness  of  will  in  monetary  matters,  are  instances  of  the 
former  kind  of  legal  precaution.  The  contractual  incapa- 
city of  married  women  by  English  common  law  is  not 
such  an  instance,  because  this  doctrine  arises  solely  out 
of  the  peculiar  relations  in  respect  of  property  which 
exist  between  man  and  wife  in  Eno-land.  It  is  not  an 
imputation  on  the  wife's  experience  or  strength  of  mind, 
but  is  solely  grounded  on  her  not  being  assumed  at  com- 
mon law  to  have  sufficient  command  of  her  purse  or  of 
her  future  actions  wherewith  to  procure  the  materials  for 
making  a  contract.  The  legal  presumption,  then,  is  that 
she  did  not  intend  to  make  one,  and,  therefore,  the  alle- 
gation that  she  did  make  a  contract  wotdd  imply,  on  the 
face  of  it,  a  fraud.  The  English  doctrine  of  "  constructive 
fraud  "  by  Avhich  certain  kinds  of  contracts  between  per- 
sons standing  in  fiduciary  relations  to  one  another  are 
disallowed,  affords  an  illustration  of  the  other  mode  above 
alluded  to  of  combating  fraud  in  the  making  of  contracts. 

The  law,  then,  having  determined  what  shall  be  the 
objects  of  the  only  contracts  it  will  recognize,  and  what 
classes  of  persons  alone  shall  make  legal  contracts,  is  next 
concerned  with  the  character  of  the  act  which  shall 
definitely  signify  to  the  contractors  themselves  and  to  all 
other  persons  that  the  contract  is  made.  The  pui-pose  of 
law  as  to  this  matter  is  twofold.  One  object  is  to  secure 
a  complete  mutual  understanding  between  the  parties; 
in  other  words,  that  the  one  knows  exactly  to  what  he  is 


200  FORM  AND   EVIDENCE   OF   A   CONTRACT, 

binding  himself,  that  the  other  knows  it  also  and  relies  upon 
it,  and  that  the  first  knows  that  the  other  is  relying  npon 
his  doinsc  that  which  he  knows  he  has  eno;ao-ed  to  do. 
Another  object  is  to  secure  such  a  record  or  memorandum 
of  the  transaction  as  may  both  prevent  the  parties  them- 
selves or  their  representatives,  at  some  future  day,  from 
being  fraudulently  tempted  to  put  a  different  colour  on 
the  transaction  from  the  true  one,  and  as  may  facilitate  to 
the  utmost  the  ready  investigation  of  the  whole  matter, 
should  a  controversy  upon  it  ever  take  place  in  a  court  of 
justice. 

All  these  considerations,  taken  by  themselves,  point 
to  the  expediency  of  enforcing  the  use  of  definite  methods 
for  the  purpose  both  of  clearly  ascertaining  the  extent 
of  a  contract,  and  preserving  evidence  of  it.  But  the 
argument  applies  with  much  less  force  to  some  kinds 
of  contracts,  and  those  the  commonest,  than  to  others. 
The  large  majority  of  the  contracts  that  people  make  are 
of  what  may  be  called  an  every-day  nature.  They  con- 
cern buying  and  selling,  letting  and  hiring,  borrowing, 
pledging,  carriage,  and  service  generally.  The  ordinary 
nature  of  each  of  these  classes  of  contracts  is  clearly  under- 
stood by  every  one  who  takes  part  in  them.  There  are, 
indeed,  individual  circumstances  which  characterize  each 
single  contract,  but  they  are  usually  simple  enough,  and 
scarcely  admit  of  being  misrepresented  or  forgotten.  On 
the  other  hand,  speed  and  economy  of  time  are  often 
essential  in  order  that  these  constantly  recurring  con- 
tracts may  be  of  the  highest  use  of  which  they  are  capable 
in  the  conduct  of  the  social  and  industrial  intercourse  of 
mankind. 

On  these  grounds  it  is  customary  to  dispense  with 
any  other  formalities  for  the  purpose  either  of  fixing  the 
moment  of  completing,  or  for  the  purpose  of  preserving  a 
record  of,  the  contract  than  those  which  the  convenience 


FORM   AND   EVIDENCE   OF   A  CONTRACT.  201 

of  the  parties  spontaneously  suggests  to  them.  Sir  H. 
S.  Maine  has  noted  how  in  primitive  Roman  times, 
even  witli  respect  to  the  commonest  contracts,  a 
cumbrous  ceremonial  or,  at  the  least,  an  elaborately 
formal  diction  were  indispensable  both  to  the  creating 
the  obligation  and  to  providing  evidence  of  it.  But 
public  convenience  gradually  shook  off  all  the  hampering 
appendages  till  the  fact  of  making  a  contract,  however 
witnessed,  became  its  own  evidence. 

The  great  development  of  modern  commerce  has  had 
two  distinct  effects  on  the  character  of  the  legal  evidence 
demanded  to  establish  the  fact  of  a  contract.  It  has 
tended,  on  the  one  hand,  to  favour  the  use  of  a  simple 
mode  of  evidence,  owing  to  the  great  similarity  and  con- 
stant recurrence  of  some  of  the  most  important  species  of 
mercantile  contracts,  such  as  negotiable  instruments  of  all 
sorts.  These  documents  are  worded  in  the  shortest  and 
simplest  form;  and  by  merely  signing  his  name  and  pass- 
ing on  the  document  to  another,  a  person  not  only  becomes 
a  contractor,  but  engages  to  do  a  great  variety  of  acts 
which,  though  thoroughly  understood  by  all  persons  con- 
cerned, are  by  no  means  expressed  on  the  face  of  the  docu- 
ment. Thus  the  uniformity  of  commercial  methods  tends 
to  the  condensation  and  abbreviation  of  the  evidence  of 
vast  classes  of  commercial  contracts. 

But  this  same  development  of  commerce,  on  the  other 
hand,  gives  birth  to  contracts  in  which  so  many  persons 
take  part,  and  which  have  reference  to  such  a  variety  of 
acts,  depending  on  so  complex  a  set  of  conditions,  that  it 
Ijecomes  the  highest  effort  of  law  to  secure  satisfactory 
evidence  in  respect  of  them.  In  the  case  of  contracts  of 
.this  nature  it  is  not  sufficient  for  law  to  adopt  the 
rigorous  principle  of  insisting  that  the  contract  must  be 
in  writing,  or  even  that  the  writing  must  be  couched  in 
certain  definite  terms  and  accompanied  by  the  j^erform- 


2-02  FORM   AND   EVIDENCE   OF   A   CONTEACT. 

ance  of  certain  solemnities.  The  English  Statute  of 
Frauds,  and  the  later  statutory  supplements  to  it,  have 
exhausted  every  possible  contrivance  in  this  direction. 
The  old  Roman  contract  "Literis,"  accordino-  to  which 
the  formal  entry  in  the  common  household  ledgers  was 
sufficient  or  essential  evidence  of  certain  contracts,  is 
a  more  primitive  instance  of  the  same  effort,  though  the 
scope  of  this  sort  of  contract  was  very  limited.  In  some 
respects  similar  to  this  last  is  the  modern  evidence  of  a 
most  important  class  of  contracts  supplied  by  registration 
in  the  books  of  a  public  company  or  on  the  records  of  a 
public  office. 

All  attempts  of  this  nature  to  secure  definite  and 
unimpeachable  evidence  of  contracts  no  doubt  possess 
considerable  value  and,  in  some  measure,  obtain  their 
end.  The  infirmity  of  them,  one  and  all,  is  that  they 
are  not,  and  never  can  be,  elastic  and  plastic  enough  to 
adapt  themselves  to  the  actual  transactions  of  mankind. 

It  is  true  that  the  general  subject-matter  of  a  contract 
can  easily  enough  be  expressed  on  the  face  of  a  writing 
or  a  deed,  or  be  still  more  compendiously  described  by 
entering  names  in  a  public  register.  But  it  frequently, 
or  most  generally,  happens  that,  side  by  side  with  every 
contract,  there  are  also  a  number  of  subsidiary  contracts 
which  tend  largely  to  explain  or  qualify  the  main  contract. 

Thus  in  the  case  of  engaging  to  let  a  piece  of  land 
on  lease  there  usually  are  a  series  of  subsidiary  contracts, 
such  as  to  secure  the  incoming  tenant  against  dis- 
turbance from  persons  claiming  through  the  landlord; 
to  rebuild  premises  destroyed  by  fire;  to  release  the 
tenant  from  paying  rent  for  a  certain  time  in  lieu  of 
the  landlord's  making  necessary  improvements;  and, 
possibly,  to  sell  the  land  for  a  fixed  price  at  the  tenant's 
option.  So  again-  in  conveying  shares  in  a  public  com- 
pany ;  besides  the  main  contract  which  is  evidenced  hy 


FOEM   AND   EVIDENCE   OF   A   CONTRACT.  203 

the  transfer  of  names  in  a  public  register,  it  may  be  that 
the  seller  makes  a  subsidiary  contract  with  the  buyer  that, 
in  certain  contingencies,  a  re-conveyance  is  to  take  place, 
or  that,  in  consideration  of  the  seller's  having  remitted 
part  of  the  purchase  money,  the  buyer  is  to  devote  what 
he  has  purchased  to  some  definite  end.  Or  the  subsidiary 
contract  may  take  the  form  of  a  guarantee  relating 
either  to  past  or  to  future  transactions,  and  the  main 
contract  may  be  made  to  rest  on  the  validity  of  the 
guarantee  in  such  a  way  that  if  the  guarantee  prove  to 
be  worthless,  the  main  contract  fails  with  it. 

Or,  lastly,  the  main  contract,  however  simple  the 
form  it  finally  assumes, — as  of  a  mere  promise  to  pay 
money  at  a  definite  date, — may  depend  for  its  validity 
upon  the  correctness  of  a  long  series  of  mutual  accounts 
between  the  parties.  The  bond  fides  of  the  transaction 
may  then  wholly  repose  on  this  assumed  correctness.  If 
there  has  been  any  miscalculation,  and,  still  more,  if  there 
has  been  anything  of  the  nature  of  fraud,  the  law  must 
regard  the  expectation,  which  is  the  very  essence  of  the 
contract,  as  not  grounded  at  all,  or  as  improperly  groimded, 
and  therefore  must  treat  the  alleged  contract  as  non- 
existent. 

This  is  the  meaning  of  what  is  called,  in  English 
law,  the  "  consideration  "  for  a  contract.  This  "  considera- 
tion" is  no  part  of  the  contract  itself.  It  is  only  one  of 
the  facts,  or  classes  of  facts,  from  which  law  judges  that 
an  actual  contract  has  been  made.  It  is,  in  truth,  a 
general  formula  deduced  from  the  ordinary  experience  of 
mankind.  Men  do  not  generally  base  expectations  on  the 
bare  promise  of  others  in  the  absence  of  all  intelligible 
reason  for  the  promise  being  made  and  kept.  The  reason 
may  be  of  various  kinds,  such  as  a  recollection  of  previous 
services  doVie  by  the  promisee  to  the  promisor ;  the  expect- 
ation of  future  services  yet  to  be  done  by  the  same ;  the 


204  '•'consideration"  for  a  contract. 

existence  of  moral  obligations  between  the  parties;  or 
even  nothing  more  than  the  solemnity  and  precision  of 
the  terms  in  which  the  promise  is  made. 

Whatever  the  reason  or  ground  of  the  expectation  be, 
in  judging  of  the  fact  as  to  whether  the  expectation  is 
really  formed,  the  law  may  well  demand  information  as 
to  this  reason  or  ground.  Should  law,  as  does  the  law 
of  England  in  the  case  of  all  contracts  (not  made  in  a 
very  few  definite  ways),  demand  this  information,  it 
becomes  itself  part  of  the  evidence  of  the  contract.  But, 
as  has  just  been  intimated,  information  as  to  the  ground 
of  a  promise  may  extend  over  an  infinity  of  complex 
transactions,  tedious  negociations,  and  even  protracted 
controversies,  the  general  result  being  that  a  certain 
definite  expectation  was  aroused  in  the  mind  of  one 
person,  at  the  least,  as  to  the  future  acts  of  another. 
At  every  stage  in  the  progress  of  these  preliminary 
circumstances  an  opening  is  afforded  for  the  admixture 
of  error,  misrepresentation,  forgetfulness,  and  fraud. 

Thus  it  appears  that,  for  large  classes  of  the  most 
important  contracts,  so  many  subsidiary  contracts  accom- 
pany the  main  one,  that  to  provide  e^ddence  of  a  kind  to 
explain  and  limit  the  main  contract  adequately,  no  sort 
of  evidence  which  bears  upon  any  one  of  the  subsidiary 
contracts  can  properly  be  excluded.  And  even  with 
respect  to  a  contract,  apparently  one  of  the  commonest 
and  least  artificial,  it  may  be  that  the  judicial  investiga- 
tion of  the  presence  of  a  reason  or  "  consideration  "  for  it 
will  open  up  all  those  very  sources  of  hallucination  which, 
by  insisting  on  definite  evidence  of  contracts,  it  is  the 
policy  of  the  law  to  prevent. 

The  general  result  of  the  inquiry  seems  to  be  that, 
though  law  may  endeavour  with  some  advantage  to 
reduce  the  difficulty  of  obviating  fraud  and  simplifying 
procedure   in  the   course   of  supporting  contracts,  yet, 


RIGHTS  AND   DUTIES   OF   CONTRACTORS.  205 

nevertheless,  the  business  of  mankind  is  always  likely  to 
keep  a  long  way  ahead,  in  point  of  prolixity  and  com- 
plexity, of  the  capacity  of  law  to  deal  with  it  in  such 
a  way  as  to  obviate  the  necessity  of  most  circuitous 
investigations  and  the  possibility  of  occasional  mishaps. 

So  soon  as  more  or  less  satisfactory  evidence  is  obtained 
of  a  contract  having  been  really  made  and  of  its  general 
character,  the  next  points  to  be  settled  are  the  exact 
rights  and  duties  of  the  parties  and  the  nature  of  the 
remedy,  if  there  be  any. 

The  rights  and  duties  of  the  parties  may  be  either 
determined  (expressly  or  implicitly)  by  the  terms  of  the 
contract,  or  may  be  imputed  by  law  as  following  from 
the  ordinary  nature  of  the  contract,  or  may  be  partly 
determined  in  one  way  and  partly  imputed  in  the  other. 
The  extreme  brevity  and  indefiniteness  that  attend  the 
making  of  the  most  familiar  contracts  call  for  the  applica- 
tion of  presumptions  founded  on  the  general  practice  and 
expiectations  of  mankind.  These  presumptions  will, 
however,  vary  with  the  particular  class  of  mankind 
immediately  contemplated,  and  with  the  actual  situation 
of  the  parties. 

Thus  it  may  be  said,  broadly,  that  there  are  three 
sources  of  information  to  which  reference  may  be  made 
on  its  appearing  that  the  terms  of  a  contract  are  in- 
sufficiently explicit  or  definite  as  to  the  detailed  rights 
and  duties  of  the  parties. 

The  first  source  is  that  presented  by  the  actual  situa- 
tion and  antecedents  of  the  parties.  Previous  transactions 
of  a  like  kind,  but  more  precise  and  intelligible,  may 
explain  the  present  one.  A  long  series  of  negotiations 
between  the  parties,  varying  from  the  general  course  of  like 
negotiations  as  pursued  by  others,  may  throw  a  light  on 
what  seems  rare  and  peculiar  in  the  present  negotiation. 


206  INTERPRETATION   OF  CONTRACTS. 

The  second  source  of  information  to  which  reference 
may  be  made  for  the  purpose  of  expounding  a  contract  is 
the  class,  trade,  profession,  or  place  of  abode  of  the  con- 
tractors. Such  a  reference  is  not  only  important  as 
serving  to  explain  language,  but  also  as  importing  into 
the  contract  customary  usages  to  which,  in  the  particular 
case,  the  expectation  of  the  parties  may  be  supposed  to 
have  been  directed.  Or  the  reverse  process  may  take  place 
of  thereby  excluding  from  the  contract  usages  habitual 
elsewhere,  but  to  which,  among  the  class  of  persons  in 
question,  expectation  could  not  have  been  directed.  It  is 
on  these  principles  that  the  customs  of  the  Stock-Exchange 
are  admitted  in  English  courts  of  justice  to  explain  con- 
tracts for  the  buying  and  selling  of  stock  ;  the  customs  of 
shipowners  are  admitted  to  explain  navigation  contracts ; 
and  even  in  narrower  trades  (as  happened  in  one  case  in 
reference  to  the  tobacco  trade)  the  usage  prevailing  in 
them  is  similarly  incorporated  with  the  actual  terms  of  the 
contract. 

But  if  the  special  situation  or  generic  habits  of  the 
parties  do  not  serve  to  clear  up  the  terms  of  the  contract, 
the  third  source  of  information  to  which  reference  must 
be  made  is  that  supplied  by  the  ordinary  habits  of  man- 
kind. It  is  natural  that  long  experience  should  have 
formulated  the  conclusions  di'awn  from  the  observation  of 
these  habits  into  general  presumptions  or  maxims.  These 
presumptions  are  partly  general  as  applying  to  all  con- 
tracts whatever ;  and  partly  special,  as  applying  to  the 
several  kinds  of  the  commonest  contracts.  The  special 
presumptions,  for  instance,  describe  whether  in  the  case  of 
sale  a  warranty  is  to  be  held  to  accompany  the  sale,  and 
if  so,  to  what  extent ;  whether  a  certain  kind  of  debt  does 
or  does  not  carry  interest,  and  to  what  amount ;  whether 
a  contract  of  pledge  leaves  the  pledgor  at  liberty  to 
use  the  thing  pledged,  and  to  vrhat  extent ;  whether  a 


INTERPRETATION   OF  CONTRACTS.  207 

contract  of  service  extends  to  all  the  matters  alleged  to 
be  included  in  it  or  only  to  some  of  them. 

The  more  general  presumptions  affect  the  interpretation 
of  every  contract  whatever,  except  in  so  far  as  they  are 
rebutted  by  express  agreement  of  the  parties,  or  by  one  of 
the  two  classes  of  considerations  already  described.  They 
relate  to  the  general  mode,  measure,  and  time  in  which 
the  contract  must  be  performed.  It  is  from  presumptions 
of  this  nature  that  the  artificial  classifications  of  Diligence 
and  Negligence  have  been  concocted  in  Roman  and  in 
English  law.  These  presumptions  have  a  greater  show  of 
logical  exhaustiveness  than  practical  utility,  inasmuch  as, 
in  any  given  case,  the  possible  loss  sustained  by  the 
breach  of  the  contract  must  admit  of  far  more  numerous 
and  fine  gradations  than  could  be  commensurate  with 
the  formal  classes  into  which  diligence  or  negligence 
are  distributable.  Nevertheless  the  main  principle  upon 
which  this  last  distribution  rests  is  a  true  one,  namely, 
that  it  may  generally  be  anticipated  that  the  less  the 
payment  made  in  return  for  diligence,  the  less  the 
diligence  that  is  expected ;  and  if  no  payment  at  all  is 
made,  as  little  diligence  as  possible  is  usually  expected, 
though  it  may  be  that  some  is. 

In  devising  a  remedy  for  breaches  or  apprehended 
breaches  of  contract,  law  may  address  itself  either  to  restor- 
ing the  parties  to  the  original  position  they  would  have 
occupied  if  the  contract  had  never  been  entered  upon,  or 
to  giving  the  injured  party  as  many  as  possible  of  those 
advantages  which  would  have  accrued  from  the  contract, 
had  it  been  performed.  The  former  method  is  chiefly 
applicable  when  the  breach  has  not  yet  taken  place  but 
is  only  apprehended,  and  the  latter  when  a  contract  is 
already  broken. 

When  there  is  good  reason  to  suspect  that  a  contract 


208  LIEN   AND   SURETYSHIP. 

will  not  be  kej)t,  whether  that  reason  be  based  on  a 
contractor  doing  an  act  inconsistent  with  the  performance 
of  his  contract,  or  upon  his  means  of  performing  his 
contract  obviously  failing  him,  the  immediate  object 
must  be  to  take  such  steps  without  delay  as  may  reduce 
to  the  utmost  the  other  contractor's  possible  loss.  One 
device  of  this  sort  is  that  called  "  lien,"  of  which  "  stoppage 
in  transitu"  may  be  treated  as  an  important  species. 
The  essence  of  "lien"  is  that  a  contractor  is  able  to  retain 
possession  of  things  owned  by  the  other  contractor 
by  way  of  security  for  his  fulfilling  his  contract.  In 
the  event  of  proper  fulfilment  becoming  no  longer 
possible,  the  creditor  with  a  lien  is  thus  able  to  get 
an  advantage  over  other  creditors  less  favourably 
situated,  and  to  re-imburse  himself  out  of  the  value 
of  the  lien  without  even  having  recourse  to  legal  pro- 
ceedings. The  process  of  "stojDpage  in  transitu"  is 
applicable  in  cases  where  a  seller,  after  having  technically 
parted  with  the  possession  of  things  sold,  before  their 
actually  getting  into  the"  possession  of  the  buyer,  hears 
of  the  buyer's  apprehended  insolvency,  and  is  thereupon 
legally  entitled  to  recover  possession  of  things  sold 
while  yet  on  their  route. 

There  is  an  important  class  of  contracts  both  in 
Boman  and  in  modern  law, — that  of  intercessio  or  surety- 
ship,— the  sole  object  of  which  is  the  providing  security 
for  a  contractor  in  case  of  his  co-contractor  failing  to 
fulfil  his  eno;ao-ement.  The  rights  and  duties  of  the 
sponsores,  or  sureties,  both  in  respect  of  the  chief 
contractors  and  of  one  another;  the  various  modes  in 
which  such  a  contract  can  be  created;  and  the  tests  by 
which  a  surety  may  be  distinguished  from  a  principal, 
fill  an  important  place  in  all  legal  systems. 

But  the  most  noticeable  of  the  modes  for  reducing  the 
possible   loss   of    a   contractor,  owing   to  the  failure    of 


BANKRUPTCY.  209 

ability  on  the  part  of  his  co-contractor  to  fulfil  his 
engagement,  is  that  of  Bankruptcy,  a  device  as  familiar 
to  Koman  law,  nncler  the  title  of  cessio  bonorum,  as  to 
every  system  of  modern  law. 

The  essential  notion  of  bankruptcy  is  that,  owing 
to  a  contractor  doing  some  act,  which,  in  the  sight  of  the 
law,  affords  unmistakable  evidence  that  he  cannot  fulfil 
all  his  contracts,  he  is  at  once  compelled  to  take  imme- 
diate steps  to  satisfy  all  his  creditors  as  far  as,  at  the 
present  moment,  he  can,  and  he  is  further  compelled 
to  forbear  entering  upon  any  fresh  enterprises,  which 
might,  by  engendering  still  greater  losses,  disable  him 
from  giving  even  the  amount  of  satisfaction  which 
he  can  give  now,  or  which  might  result  in  some  creditor 
being  favoured  at  the  expense  of  others.  The  peril 
attaching  to  this  stringent  process  is  that,  in  a  lengthy 
course  of  strictly  honourable  commercial  transactions, 
the  moment  of  apparent  penuriousness  may  be  a  most 
unfortunate  one  at  which  to  check  the  enterprise.  It 
may  ruin  the  debtor  and  seriously  diminish  the  amount 
ultimately  divisible  among  the  creditors. 

Thus  one  main  object  in  a  bankruptcy  law  must  be  that 
of  selecting  such  acts  to  be  conclusive  signs  of  insolvency, 
present  or  future,  as,  in  the  experience  of  the  ways 
of  mankind,  really  are  such.  Another  object  is,  the 
provision  of  a  competent  administrative  body  to  gather 
in  and  estimate  the  bankrupt's  assets  and  to  distribute 
them  proportionably  among  the  several  creditors  accord- 
ing to  their  legal  claims.  Other  objects,  again,  are  the 
protection  of  the  person  of  the  bankrupt  himself  against 
ordinary  legal  process,  and  possibly  the  making  such  a 
provision  for  him  as  may  best  enable  him  hereafter  to 
pay  his  debts  in  full,  whether  they  be  only  morally  due, 
or  be  treated,  for  some  purposes,  as  still  legally  due. 
Voluntary    composition    with    creditors,   of    a    kind   to 


210  SPECIFIC  PERFORMANCE. 

exclude  the  necessity  of  a  reference  to  courts  of  justice, 
are  popular  and  valuable  substitutes  for  the  remedy 
employed  in  bankruptcy. 

The  remedies  for  the  actual  breach  of  contracts  are 
twofold;  one  that  of  compelling  actual  performance  in 
kind,  the  other  that  of  exacting  compensation  for  non- 
performance. 

There  are  some  classes  of  contracts  to  which  the 
former  species  of  remedy  is  obviously  unsuitable.  Such 
are  those  in  which  a  moral,  confidential,  or  friendly 
relationship  is  presupposed  in  the  course  of  fulfilling 
the  contract.  Instances  of  these  sorts  of  contracts  are 
contracts  to  marry,  to  serve  as  an  apprentice  or  domestic 
servant,  to  employ  as  an  agent,  or  to  enter  into  a 
partnership.  In  the  case  of  these  sorts  of  contracts, 
a  compulsory  fulfilment  of  them  would  be  either 
impossible  or  only  possible  in  outward  appearance.  But 
there  are  other  contracts  for  which  a  compulsory  ful- 
filment is  the  only  adequate  remedy.  Such,  eminently, 
are  contracts  for  a  sale,  and  for  all  that  partakes  of  the 
nature  of  a  sale,  such  as  a  lease,  a  mortgage,  or  the 
creation  of  a  servitude.  In  these  cases  the  object  of 
the  contract  is  in  the  highest  degree  definite  and  limited  ; 
while  it  may  also  be  so  precious  and  singularly  desirable 
that  no  monetary  substitute  can  be  satisfactory.  It  is 
considerations  such  as  these  which  have  led  to  the 
evolution  of  the  doctrine  of  "specific  performance,"  as 
recognized  and  guardedly  applied  in  English  covnis  of 
ecjuity.  It  is  obviously  only  applicable  where  the  acts 
of  the  plaintiff  himself  have  not  already  rendered  a 
return  to  the  original  situation  impossible. 

But  the  most  obvious  and  generally  convenient  mode 
of  applying  a  legal  remedy  in  the  case  of  a  breach  of 
contract  is  that  of  estimating  the  value  of  the  loss  by  a 
monetary  standard,  that  is,  in  the  terms  of  a  common 


EXEMPLARY   DAMAGES.  211 

medium  of  exchange.  In  the  course  of  estimating  the 
amount  of  the  loss  sustained,  so  as  to  translate  it  into  a 
new  language,  a  variety  of  considerations  may  have  to 
be  borne  in  mind  which  might  at  first  escape  attention ; 
and  these  will  differ  "with  the  different  objects  of  contract. 

Thus,  in  the  case  of  a  breach  of  contract  to  marry, 
the  loss,  though  possibly  of  a  pecuniary  character  in  one 
of  its  aspects,  cannot  be  only  such.  The  possible  injury 
to  rej^utation,  the  risk  to  other  matrimonial  prospects, 
and  the  pain  sustained  by  the  feelings,  are  in  themselves 
of  a  nature  which  defies  calculation  in  the  terms  of  a 
monetary  scale.  In  such  a  case,  if  monetary  compen- 
sation is  the  only  possible  one,  the  assessment  of  the 
amount  of  it  can  have  only  an  arbitrary  or  accidental 
relation  to  the  actual  loss  or  suffering  entailed  by  the 
breach  of  contract.  In  fact,  other  considerations  than  the 
actual  measure  of  that  loss  are,  perforce,  admitted.  Such 
considerations  are  the  pecuniary  position  of  both  parties, 
and  the  sort  of  expectations  to  which  that  may  naturally 
have  given  rise ;  the  possibility  of  the  defendant's 
making  reparation  out  of  his  or  her  existing  means ;  and 
the  presence  of  aggravating  circumstances  of  hardship 
and  cruelty.  When  damages  are  thus  increased  on 
gTOunds  other  than  the  estimate  of  the  actual  pecuniary 
loss  sustained,  they  are  sometimes  called  "  vindictive  "  or 
"  exemplary  "  damages,  and  the  estimation  of  damages  in 
this  way  is  carefully  watched  and  restricted. 

Another  case,  somewhat  similar,  may  occur  in  which 
a  pecuniary  estimate  is  impossible.  That  is  the  case  of 
service  or  labour,  when,  on  the  one  hand,  the  loss 
sustained  by  the  employer  through  a  breach  of  contract 
at  a  particular  moment  may  reach  to  such  a  variety  of 
matters  and  mav  stretch  so  far  and  deep,  that  any  attempt 
at  a  pecuniary  estimate  must  be  delusive.  On  the  other 
hand,  it  is  likely  enough  to  happen  that  the  servant  or 


212  LABOUR  CONTRACTS. 

labourer  is  wholly  unable  to  make  any  pecuniary  compen- 
sation whatever.  This  question  is  one  which  presents 
great  perplexities ;  and  attempted  solutions  of  it,  both  in 
the  past  time  and  the  present,  have  led  to  the  most 
t3a-annical  abuses. 

It  has  seemed  impossible  to  approach  the  question 
without  regard  to  its  political  and  social,  as  well  as  to 
its  purely  legal,  bearings.  The  difficulty  is  that,  if  an 
employer  has  no  means  of  enforcing  a  contract  with  a 
labourer  or  servant,  he  Avill  not  employ  him.  But  if  the 
labourer  or  servant  is  wholly  destitute  of  property,  it  is 
thouo-ht  that  the  only  pressure  he  can  be  made  to  sustain 
at  the  hands  of  the  law  is  a  punishment  similar  to  those 
inflicted  for  breaches  of  the  criminal  law.  Thus,  if  an 
employer  breaks  his  contract,  a  payment  which  will  be 
trifling  to  him  may  be  adequate  compensation  to  his 
labourer,  while  for  a  similar  breach  of  contract  on  the 
part  of  the  labourer,  the  consequence  may  be  that  the 
labourer  is  treated  as  a  criminal. 

The  question  is  further  complicated  by  the  modern, 
and  constantly  growing,  habits  of  combination  among 
labourers  for  a  large  number  of  purposes,  and  among 
others,  for  that  of  bringing  pressure  to  bear  upon 
employers  by  threatening  what  is  regarded  by  some  as 
wholesale  breaches  of  contract  in  the  event  of  non-com- 
pliance with  their  terms,  in  reference  to  such  matters  as 
raising  wages,  shortening  hours  of  labour,  allowing 
holidays,  and  the  like.  The  capitalists  or  employers 
retaliate  by  the  use  of  the  'offensive  and  defensive 
weapon  which  the  law  puts  into  their  hands,  that 
of  imprisonment.  When  the  combination  is  a  fair  and 
open  one,  and  no  tyrannical  or  fraudulent  efforts  are  made 
to  procure  adherents  to  it,  or  to  intimidate  dissentients, 
or  to  take  the  employers  at  a  gross  disadvantage,  it  is 
scandalous  that  the  law  should  tlirow  so  heavv  a  weJa'ht 


COMBINATION   LAWS.  213 

as  the  power  of  imprisonment  implies  into  one  scale  of 
what  ought  to  be  treated  as  a  purely  economic  contention. 

It  is  different  when  the  combination  passes  the  limits 
here  marked  out  and  assumes  the  form  of  organized 
physical  force.  The  latter  case  may  properly  be  dealt 
Avith  by  the  criminal  legislation,  somewhat  of  the  form  of 
the  English  "  combination  "  statutes  ;  but  such  legislation 
has  to  be  carefully  restricted,  because, — proceeding,  as  all 
legislation  must, —  directly  from  the  more  leisurely  and 
opulent  classes  of  society,  the  line  (difficult  at  all  times  to 
draw)  between  what  is  natural  and  proper  self-defence 
and  what  is  tyrannical  aggression,  is  most  likely  to  swerve 
aside  in  favour  of  those  classes  of  society  to  which 
members  of  the  legislature  usually  belong. 

With  respect  to  the  more  ordinary  contracts  of  labour 
and  service,  it  is  probable  that  the  absence  of  any 
possible  recourse  to  punishments  such  as  belong  to  the 
criminal  law  would  not  be  found  seriously  to  prejudice 
the  interests  of  employers.  Regular  employment  is  so 
necessary  for  the  gTcat  mass  of  the  population,  and  more 
especially  for  the  poorest  part  of  that  mass,  that  the 
sentiment  which  stimulates  to  faithfulness  to  clearly 
understood  engagements  is  not  likely  to  be  long  weakened 
on  any  large  scale.  In  those  exceptional  cases  where 
contracts  are  broken  on  the  side  of  servants  or  labourers 
without  legal  remedy  or  compensation  being  attainable,  it 
is  probable  that  public  opinion  will  prove  itself  vigorous 
enough  to  award  reprobation  or  consolation  to  one  party 
or  the  other  with  sufficient  justice  to  prevent  a  frequent 
recurrence  of  similar  disasters. 

Even  in  those  contracts,  however,  for  the  breach  of 
which  a  monetary  compensation  is  a  perfectly  sufficient 
and  natural  remedy,  the  assessment  of  the  compensa- 
tion may  involve  peculiar  difficulties.  Thus,  in  case  of  a 
breach  of  contract  to  effect  a  purchase,  to  sell  a  cargo  of 


214  MODES   OF  ASSESSING   DAMAGES. 

goods,  or  to  conduct  a  profitable  mercantile  negociation, 
the  question  may  be  jjresented  as  to  whether  the  con- 
tractor who  has  suffered  from  the  breach  ought  to  be 
merely  restored  to  the  position  he  would  have  occupied 
if  the  contract  had  never  been  entered  upon, — which  may 
involve  reparation  for  loss  of  time,  loss  of  a  market,  loss 
of  special  opportunity  as  of  a  season  for  sailing  and  the 
like;  or  whether  the  jDrobable  benefit  of  the  contract 
when  fully  performed  ought  to  be  estimated  and  the 
amount  so  calculated  made  the  measure  of  the  damages. 

It  is  obvious  that,  for  a  vast  number  of  the  most 
important  mercantile  contracts,  the  very  essence  of  them 
depends  on  a  certain  speculative  uncertainty  as  to  the 
profits  to  be  expected  from  them.  Thus  any  accurate 
measurement  of  the  loss  sustained  by  the  breach  of  one 
of  these  classes  of  contracts  must  be  impossible. 

Assuming,  nevertheless,  that  the  second  of  the  above 
two  principles  of  compensation  is  the  only  just  one,  the 
following  contrivances  have  been  resorted  to  for  the 
jmrpose  of  providing  a  distinct  (though  imperfect) 
measure  of  the  problematical  value  of  a  broken  contract. 
One  contrivance  is  an  estimation  of  its  value  by  the 
parties  themselves  at  the  time  of  making  the  contract. 
This  may  take  the  form  of  a  subsidiary  engagement 
or  bond  to  pay  so  much  in  case  of  non-fulfilment  of  the 
contract,  and  as  an  adequate  measure  of  the  damage 
sustained.  Another  contrivance  is  to  make  general  pre- 
sumptions, founded  on  the  ordinary  course  of  business  or 
of  the  special  business  concerned,  and  to  base  the  estimate 
of  the  loss  on  the  truth  of  those  presumptions  if  they 
arc  not  rebutted  by  special  facts.  Such  presumptions 
are  those  made  habitually  with  respect  to  allowance  of 
interest  on  bills  of  exchange,  with  respect  to  the  calcula- 
tion of  the  probable  length  of  a  voyage  in  navigation 
contracts,  or  with  respect  to  the  current  value  of  money 


QUASI-CONTRACTS.  215 

at  a  given  time  in  different  parts  of  the  world.  A  third 
contrivance  is  to  strike  an  averao^e  between  the  hio-hest 
and  the  lowest  possible  gains  to  accrue  from  the  contract 
if  it  had  been  kept.  In  the  case  of  some  very  complicated 
contracts  it  may  be  that  all  these  contrivances  will  have 
to  be  resorted  to  at  once  in  order  to  estimate  the  loss 
incurred  in  different  parts  of  the  transaction. 

The  word  "  contract "  has  habitually  been  applied  in 
all  countries  to  a  number  of  legal  transactions  which,  on 
one  ground  or  another,  in  no  way  satisfy  the  description 
of  a  true  legal  contract  as  given  above.  Such  for  instance 
are  "quasi-contracts,"  which  only  resemble  contracts  in 
respect  of  the  legal  situation  of  the  parties  when  once  the 
situation  they  depict  has  been  attained. 

There  are  cases  in  which  a  person,  through  a  series 
of  accidental  circumstances,  may  be  in  possession  of  what 
belongs  to  another,  or  may  have  parted  with  what  belongs 
to  himself  on  grounds  which  he  afterwards  discovers  to 
be  insufficient.  He  has  committed  no  injury  to  a  right 
of  ownership,  or  has  so  far  sustained  none.  But  it  is 
clearly  inequitable  that  he  should  retain  what  does  not 
belong  to  him  or  be  unable  to  recover  Avhat  does.  He 
clearly  is  liable  to  a  special  duty  as  towards  the  owTier 
of  what  he  possesses,  or  has  a  special  legal  right  against 
the  person  who  possesses  what  belongs  to  himself  He 
has  a  duty  to  restore,  or  a  right  to  enforce  restoration. 
Or  he  may  be  in  both  positions  at  once,  and  then  he  is 
situated  exactly  in  the  same  way  as  if  he  had  made  a 
pair  of  contracts,  or  a  single  two-sided  or  so-called 
'•'  bilateral "  contract.  The  rights  and  duties  really  belong- 
to  the  law  of  ownership,  and  should  be  treated  under 
that  head;  but  their  similarity  to  the  obligatory  relations 
arisino-  out  of  a  contract  have,  in  many  systems  of  law, 
led  to  their  being  affiliated  to  contract  law,  and  being 


216  IMPLIED   CONTRACTS, 

treated  under  that  head.  The  English  expression 
"  implied  contracts  "  seems  to  cover  assumed  or  fictitious 
engagements  of  this  nature;  and  also  to  cover  un- 
mistakable contracts  when  the  evidence  for  them  has 
to  be  gathered  from  a  number  of  surrounding  circum- 
stances rather  than  from  the  express  language  of  the 
parties. 

There  are  some  important  transactions  to  which  the 
term  contract  is  frequently  applied,  although  they  can  in 
no  way  be  said  to  satisfy  the  description  of  a  legal 
contract  as  above  given.  Such,  for  instance,  are  marriage 
and  sale.  It  is  customary  to  speak  not  only  of  a  contract 
to  marry,  which  is  an  unmistakable  legal  contract,  but 
of  the  act  of  marriage,  or  assemblage  of  acts  which 
constitute  a  marriage,  as  being  a  contract.  There  is 
undoubtedly  an  analogy  between  the  situation  of  two 
persons  who  marry  one  another  and  that  of  two  persons 
who  make  a  contract  with  each  other ;  and  this  analogy 
may  be  closer  in  some  countries  and  periods  than  in 
others.  Indeed,  the  analogy  may  be  so  close  in  the  case 
of  some  marriage  laws  that  the  difference  between  a  mar- 
riage and  a  contract  vanishes  altogether. 

The  analogy  consists  in  (1)  the  necessary  reciprocity 
of  sentiment  and  intention  which  accompanies  the  joint 
act;  (2)  the  result  of  the  joint  act,  which  is  that  each  of 
the  parties  has  legal  rights  and  duties  in  respect  of  the 
other;  (3)  the  character  and  extent  of  some  of  these 
rights,  which  (frequently)  may  be  qualified  by  the  joint 
will  of  the  parties  as  ascertained  on  the  occasion  of 
entering  upon  the  marriage. 

But  this  analogy  is  only  an  analogy,  and  no  more, 
because  the  rights  and  duties  of  the  parties  are  primarily 
fixed  by  the  State  ;  and  such  qualifications  of  those  rights 
and  duties  by  the  parties  themselves  as  the  State  allows 


MARRIAGE  AS  A  CONTRACT.  217 

— as,  with  respect  to  property,  management  of  business, 
education  of  children  and  the  like — are  treated  as  wholly 
subsidiary  to  the  general  policy  of  the  State  in  respect  to 
the  rights  themselves. 

Again,  in  all  States  in  which  unrestricted  liberty  of 
divorce  is  not  allowed,  no  mere  agreement  by  the  parties 
themselves  can  cancel  the  marriage ;  whereas  it  is  of  the 
very  essence  of  a  contract  that  either  contractor  can 
release  the  other  from  his  duties  to  perform  the  contract. 
Thus  though  it  is  true  that  law  often,  in  respect  to 
certain  matters,  limits  the  region  of  free  contract,  and,  to 
that  extent,  modifies  the  conception  of  contract  altogether; 
yet  in  these  cases  persons  are  orcly  restrained  as  to  the 
matters  to  which  the  contract  shall  not  extend.  Whether 
or  not  it  shall  extend  to  all  matters  legally  permissible  is 
left  to  the  free  will  of  the  parties. 

But  in  marriage,  as  also  in  service  in  some  states  of 
society, — and  not  so  long  ago  in  England, — all  the  main 
rights  and  duties  resulting  from  the  relationship  (and 
which  are  the  expression  of  it)  are  sharply  marked  out 
both  by  positive  and  negative  limits.  The  practical 
reliance  (so  far  as  the  relationship  is  regarded  from  its 
legal  and  not  its  moral  side)  of  each  of  the  parties  is 
placed,  not  on  the  good  faith  of  the  other  leading  him  or 
her  to  do  what  has  been  promised,  but  on  the  pre- 
sumed willingness  of  the  other  to  conform  to  the  course 
arbitrarily  marked  out  for  him  or  her  by  law. 

It  is  obvious  from  this  investigation,  as  has  been 
already  indicated,  that  marriage  has  a  tendency  to  glide 
into  a  mere  contract ;  and  that  the  prevailing  distinction 
between  marriage  and  a  contract  must  be  tested  by  the 
amount  of  voluntariness  permitted  in  constituting  the 
terms  of  the  relationship  and  the  conditions  of  its 
duration.  The  formation  and  preservation  of  the  family 
gi'oup  is,  however,  in  any  healthy  State,  of  far  too  great 


218  SALE   AS  A  CONTRACT, 

moment  to  be  relegated  to  the  capricious  choice  of 
individual  persons  in  the  community.  On  this  gi'ound 
marriage  is  an  act  by  which  a  status,  or  special  legal 
relationship  sanctioned  by  the  State,  is  entered  upon,  and 
not  a  mere  contract  made. 

It  is  even  a  more  inveterate  habit  to  speak  of  a 
contract  of  sale  than  of  a  contract  of  marriage;  and  yet 
the  transaction  termed  a  sale  is  still  less  analogous  to  a 
true  contract  than  marriage  is.  A  sale  is  in  itself 
nothing  more  than  an  exchange  or  mutual  conveyance  of 
l^roperty  between  two  pea-sons,  the  property  (or  a  part  of 
it)  conveyed  on  one  side  being  the  common  circulating 
medium  of  the  country,  that  is,  money. 

All  that  is  essential  to  a  sale  is  that  the  parties  should 
intend  to  effect  it,  and  should  in  form  effect  it.  When 
two  parties  make  a  mutual  interchange  of  money  for  goods 
and  intend  that  one  shall  represent  the  price  or  the  reason 
for  thus  surrendering  the  other,  all  the  necessary  elements 
of  a  sale  are  completely  present.  In  very  primitive  times, 
before  the  notion  of  contract,  or  even  of  good  faith,  has 
acquired  any  steadiness,  no  other  sort  of  sale  than  this 
exists.  The  exact  character  of  it  is  typified  in  the  Roman 
solemnity  of  onanci'patio,  in  which  the  notion  of  mutual 
conveyances  was  the  only  one  present.  In  modern 
■purchases  in  what  is  called  "market  overt,"  the  same 
notion  is  alone  to  be  found,  and,  there  being  no  engage- 
ment reaching  to  the  future,  there  is  no  room  for  the 
operation  of  contract. 

But  by  a  series  of  steps,  some  of  the  earlier  of  which 
have  been  skilfully  tracked  out  by  Sir  H.  S.  Maine,  the 
notion  of  contract  becomes  naturally  imported  into  the 
more  primitive  and  elementary  notion  of  sale.  First, 
the  custom  becomes  habitual  of  one  party  conveying  what 
belongs  to  him,  while  the  other  party  abstains  for  a  time 


CONTRACT  AND   CONVEYANCE.  219 

from  performing  liis  reciprocal  function;  and,  next,  the 
custom  becomes  habitual  of  neither  party  making  any 
conveyance  at  the  time,  but  only  of  agreeing  to  make 
conveyances  in  the  future.  In  this  last  case  a  contract 
for  a  future  sale  has  taken  the  place,  for  the  moment,  of 
an  actual  sale ;  but  the  contract  for  a  sale  is  not  a  substi- 
tute for  a  sale  which  must  take  place  afterwards  unless, 
as  happens  under  some  legal  systems,  courts  of  justice 
impart  to  certain  contracts  for  a  sale  all  the  legal  character 
and  incidents  of  an  actual  sale. 

The  relation  of  a  contract  to  a  conveyance,  and,  more 
especially,  of  a  contract  for  a  sale  to  an  actual  sale, 
is  perplexed  by  certain  peculiarities  in  the  transaction 
styled  a  sale,  to  which  the  habits  and  convenience  of 
mankind  have  given  birth. 

Thus  the  case  may  be  supposed  that  a  sale  has  been 
made  of  the  general  kind  recognized  and  supported  by 
law,  and  yet  that  neither  party  has  complied  with  the 
formalities  (whatever  they  happen  to  be)  which  in  every 
case  are  indispensable  to  the  legal  conveyance  of  the 
property  or  money. 

Here  the  law  occupies  a  somewhat  ambiguous  position. 
On  the  one  hand,  it  asserts  that  the  parties  have  conveyed 
that  which,  by  the  appropriate  act,  they  signified  their 
purpose  to  convey;  on  the  other  hand,  the  law  asserts 
they  have  neither  of  them  conveyed  that  which,  without 
the  forms  appropriate  in  each  case,  could  not  be  conveyed. 
It  is  from  a  sort  of  instinctive  resistance  to  this  ambiguity 
of  attitude  that  the  notion  of  sale  itself  slowly  undergoes 
a  metamorphosis.  It  acquires  a  double  meaning ;  first, 
the  simple  and  original  one  of  mutual  and  reciprocal  con- 
veyance ;  secondly,  the  derivative  meaning  of  a  contract, 
the  terms  of  which  are  that  each  party  shall,  in  default 
of  imniediate  conveyance,  take  such  steps  as  may  be 
needed  to  make  an  effectual  conveyance  at  a  future  time. 


220  CONTRACT  AND  CONVEYANCE. 

In  this  way,  by  an  extensive  use  of  the  term  sale,  the 
legal  ambiguity  above  described  is  cured.  The  law  no 
longer  asserts  that  a  sale  means  only  simultaneous  acts  of 
mutual  conveyance.  It  means  this,  but  it  also  means 
contracts  to  convey  in  default  of  immediate  conveyance. 

Another  source  of  complication  in  the  relationship  of 
contract  to  sale  is  that,  in  the  case  of  most  sales,  a  num- 
ber of  subsidiary  contracts  are  usually  either  expressly 
made  by  the  parties  or  implied  by  law,  such  legal  impli- 
cation being  based  on  the  ordinary  habits  of  mankind, 
on  general  convenience,  or  on  particular  customs  prevalent 
in  respect  of  certain  classes  of  transactions.  Such  are 
contracts  with  respect  to  rescission  of  the  sale,  or  to  com- 
pensation, in  case  of  hidden  defects,  known  or  not  known 
to  the  seller,  coming  afterwards  to  light ;  with  respect  to 
the  possession  of  the  thing  sold,  either  before  or  after  the 
actual  conveyance  has  taken  place ;  with  respect  to  the 
responsibilities  of  the  possessor  for  injuries  to  it  sustained 
during  the  possession ;  with  respect  to  giving  compensa- 
tion in  case  of  eviction ;  and  possibly,  as  in  the  case  of  an 
English  common-law  mortgage,  with  respect  to  re-sale 
hereafter  on  certain  conditions  being  complied  with  by 
the  seller. 

The  number  of  surrounding  contracts  which  thus 
hang  round  all  the  most  important  sales  naturally  lead 
to  the  suppression  of  the  notion  of  the  sale  itself  as 
independent  of  these  contracts.  This  is  the  more  likely 
to  be  the  case  where,  as  in  England,  the  same  deed  of 
conveyance  commonly  operates  at  once  as  transferring 
the  property,  and  as  furnishing  evidence  of,  or,  rather,  as 
constituting,  a  series  of  subsidiary  contracts. 

There  is  one  common  notion  with  respect  to  contract 
which  yet  remains  to  be  examined  :  that  is,  the  notion  of 
contracts  being  transferred  in  life;  or,  on  death,  descending 


CONTRACT  AND  OBLIGATION.  221 

by  intestate  succession  or  testamentary  deposition.  As 
above  explained,  a  legal  contract  was  seen  to  be  eminently 
a  personal  agreement;  that  is  to  say,  an  agreement  in 
which  the  promisor  relied  upon  his  own  ability  and  dis- 
position to  keep  his  promise,  and  the  promisee  relied 
upon  the  same  likewise.  In  pursuance  of  this  essential 
conception,  it  must  seem  wholly  anomalous  to  admit  of 
any  substitution  of  persons  in  the  course  of  carrying  out 
the  contract;  and  yet  the  rapid  play  of  commerce  depends 
more  upon  what  may  be  called  the  "  marketable  value  " 
of  contracts,  than,  perhaps,  upon  any  other  single  legal 
institution.  What  is  needed,  then,  is  to  understand  what 
is  meant  by  a  contract  being  bought  or  sold,  or  descend- 
ing to  heirs  and  executors. 

At  this  point  the  inconvenience  is  experienced  in 
English  law  of  having  no  word  at  hand  like  ohligatio — • 
signifying  the  legal  relations  created  by  a  contract — to 
oppose  to  the  contract  itself,  out  of  which  the  legal  rela- 
tion arises.  In  Roman  and  in  Continental  law,  through 
the  use  of  the  term  ohligatio,  there  is  no  danger  of  con- 
fusino;  the  rights  and  duties  which  it  denotes  with  the 
formal  act  which  is  the  cause  and  sign  of  their  having 
accrued.  But  it  is  quite  customary  in  England  to  hear 
of  contracts  descending  to  a  man's  heirs  or  executors,  and 
of  their  being  assigned  and  bought  or  sold.  What  is 
really  meant  is,  that  the  rights  and  duties  which  have 
attached  through  the  making  of  a  contract  are  the  sub- 
jects of  the  several  legal  operations  indicated. 

There  are,  indeed,  cases  in  which  it  may  be  difficult  to 
distinguish  whether  a  person  doing  a  certain  act  with  the 
help  of  another  person's  name,  and  possibly  by  the  use  of 
documents  signed  by  him,  is  simply  (1)  succeeding  to  the 
rights  and  duties  of  the  other,  arising  out  of  his  contract 
with  a  third  person,  or  (2)  making  a  fresh  contract  for 
himself,  or  (8)  merely  personating  the  original  contractor, 
11 


222  TRANSFER   AND   DESCENT   OF   OBLIGATIONS. 

0nd,  by  such  temporary  intervention,  assisting  the  actual 
contractor  to  avail  himself  of  rights  under  the  contract. 

The  first  (1)  of  these  cases  is  that  of  those  contracts  the 
benefit  or  burden  of  which  descend  to  a  man's  heirs  or  suc- 
cessors, or  of  those  which,  in  the  words  of  English  law,  "run 
with  the  land,"  that  is,  which  attach  to  every  one  into  whose 
hands  a  certain  piece  of  land  comes,  whether  it  be  as 
landlord  or  as  tenant.  Whether  the  rights  and  duties  under 
a  contract  shall  descend  and  pass  from  one  person  to 
another  in  these  or  in  any  other  ways  must  depend,  as  do 
all  other  qualifications  of  these  rights  and  duties,  upon 
the  will  of  the  contractor,  subject,  of  course,  to  the  recog- 
nition of  such  consequences  on  the  part  of  the  State. 
The  convenience  is  so  great  of  a  man's  being  able  to  bind 
not  only  himself  but  also  all  those  who  inherit  his  estate, 
and  of  a  man's  being  able  to  rely  on  the  performance  of 
an  engagement,  not  only  by  the  individual  person  who 
binds  himself,  but  (if  its  object  be  yet  unaccomplished  at 
the  time  of  that  person's  death)  by  those  who  succeed  him 
and  inherit  his  means  of  completing  the  performance,  that 
the  notion  of  succession  to  obligations — or  to  the  rights 
and  duties  arising  out  of  contracts — becomes  a  most 
familiar  one  in  all  systems  of  law;  and  the  process  of 
such  succession  is  usually  facilitated  as  much  as  possible 
by  legislation. 

In  the  second  (2)  case  above  alluded  to  a  person  might 
seem  to  be  only  availing  himself  of  the  contract  of 
another  when  really  he  is  also  or  solely  making  a  new 
contract  for  himself.  This  is  the  case  of  the  contracts 
made  by  what  are  called  "negotiable  instruments;"  to 
which  class  of  contracts  belong  those  arising  out  of  bills 
of  exchange  and  promissory  notes.  These  instruments 
are  simple  written  forms  conveying  a  promise  to  pay 
money  to  any  possessor  of  the  instrument  at  a  certain 
date,  the  money  either  to  be  paid  directly  by  the  pro- 


NEGOCIABLE  INSTRUMENTS.  223- 

misor,  or  indirectly  tlirougli  a  third  person,  in  whose 
hands  the  promisor  has  deposited  money  for  the  purpose 
of  satisfying  the  demand.  The  essence  of  these  instru- 
ments is  that,  by  the  mere  transfer  of  the  document, 
accompanied — it  may  be — with  the  affixing  to  it  the  trans- 
feror's name,  anew  set  of  rights  and  duties  are  called  into 
being  exactly  reproducing  the  original  ones  created 
between  the  original  promisor  and  promisee;  and  yet  all 
the  while  the  original  promisor  and  each  intermediate 
one  continue  bound  to  the  actual  possessor  of  the  docu- 
ment. This  process  may  be  repeated  any  number  of 
times.  The  peculiarity,  however,  is  that,  since  each 
transfer  of  the  document  creates  a  fresh  contract,  all  the 
successive  contracts  co-exist  at  the  same  time. 

The  real  explanation  of  this  is  that  each  promisor  in 
turn  lays  himself  under  a  contingent  duty  to  pay  a  certain 
sum  of  money  to  the  person  who  holds  the  document  and 
presents  it  at  the  proper  time  and  place.  He  makes  no 
contract  with  any  one  but  the  person  to  whom  he 
immediately  transfers  the  document ;  but  the  nature  of 
the  contract  so  made  is  such  that  any  future  holder  of 
the  document  has  all  the  rights  arising  under  the  contract 
which  any  previous  contractor  had.  Thus  each  promisor 
is  liable  to  pay  the  debt  once  to  some  person  or  other. 

This  contingent  duty  of  paying  to  some  one  or  other 
is  one  chief  feature  in  this  class  of  contracts.  Another 
feature  is  that  at  each  transfer  of  the  document  a  fresh 
independent  contract  is  made.  The  general  result  is 
extremely  beneficial  to  the  holder  of  the  document,  as  he 
has  a  double  kind  of  security  for  payment.  In  the  first 
place,  he  looks  to  the  person  who  immediately  contracted 
with  him ;  and,  in  the  second  place,  he  may  avail  himself 
of  the  right  of  action  against  an  indefinite  number  of 
persons  to  whom  he  has  succeeded  through  his  possession 
of  the  document.     In  every  system  of  law  in  which  these 


224  AGENCY    OK   MANDATE. 

contracts  are  recognized  tlie  most  precious  rules  are  laid 
down  for  marking  the  order  in  whicli  tliese  different 
classes  of  rights  may  be  made  available,  and  in  wliicb, 
after  due  notice,  all  the  promisors  may  be  successively 
sued.  Sometimes  it  is  said  that  a  contract  of  this  sort, 
by  which  each  promisor  so  engages  to  pay  only  if  an  ear- 
lier promisor  does  not  pay,  is  really  one  of  suretyship. 

The  third  (3)  case  in  which  the  position  of  one  who 
is  presumably  a  contractor  may  be  an  ambiguous  one  is 
where  it  is  doubtfid  how  fer  one  who  is  availing  himself 
of  rights  under  a  contract  is  a  successor  to  those  rights,  or 
is  only  doing,  on  behalf  of  the  original  contractor,  the 
formal  acts  necessary  to  render  them  available.  This 
must  be  a  c[uestion  of  fact  and  of  evidence,  and  belongs 
to  the  general  subject  of  Agency. 

The  whole  question  of  agency  is  one  of  evidence.  Im- 
portant as  it  practically  is  in  a  commercial  country,  the 
decision  of  questions  arising  upon  it — that  is,  questions  as 
to  how  to  distinguish  a  principal  from  an  agent,  and  how 
to  protect  principals  against  the  acts  of  unauthorized 
agents  and  the  public  against  both — must  depend,  partly, 
upon  the  use  of  that  general  wisdom  which  can  be  taught 
only  by  intercourse  with  the  world,  and  partly  upon  the 
special  adroitness  with  which  legal  presumptions  and 
maxims  founded  upon  that  experience  are  gradually  con- 
structed. 

There  are,  indeed,  two  distinct  aspects  in  which  the 
relation  of  principal  and  agent  figures  in  the  law  of 
contract.  There  is  first  the  contract  of  agency,  which  is 
nearly  the  same  as  the  Roman  mandatiim,  the  object  of 
which  is  to  enable  one  person  to  repose  confidence  in  the 
management  of  his  afiairs  by  another.  In  the  ordinary 
business  of  life,  and  still  more  in  the  conduct  of  compli- 
cated commercial  concerns,  especially  such  as  have  oft- 
shoots  in  other  countries,  the  convenience  and  necessity 


AGENCY   OR   MANDATE.  225 

of  such  personal  representation  are  sufficiently  obvious. 
Like  other  contracts,  this  one  may  either  be  created  by 
express  language,  written  or  spoken,  or  may  have  to  be 
presumed  from  the  acts  of  the  parties  (such  as  ratification 
of  acts  previously  done)  and  from  surrounding  circum- 
stances. In  some  cases  the  importance  of  guarding  against 
abuses  or  frauds  in  this  sort  of  substitution  of  persons  is 
so  great  that  law  demands  compliance  with  special  forms 
in  nominating  an  agent  for  certain  purposes,  as  for 
appointing  a.  p^'ocurator  or  cognitor  afRo-me  and  granting 
a  "  power  of  attorney  "  in  England, 

The  other  aspect  in  which  Agency  appears  in  contract- 
law  arises  out  of  the  previous  one,  and  relates  to  the 
capacity  and  power  of  an  agent,  when  duly  appointed,  to 
make  contracts  on  behalf  of  his  principal.  This  belongs 
to  the  more  general  question  as  to  the  number  and  kind 
of  legal  purposes  for  which  representation  {per  nuntium 
in  Roman  law)  is  admissible  and  what  are  the  legal  con- 
sequences to  all  the  parties,  conceivably  interested,  of 
such  representation.  The  making  of  contracts  is  always 
held  to  be  one  of  the  purposes  to  which  representation 
can  extend.  In  this  way  the  fact  of  agency  first  gives 
rise  to  a  contract  of  agency  between  the  principal  and  the 
agent ;  and,  secondly,  if  the  purpose  of  the  agency  is  that 
of  making  contracts  on  behalf  of  the  principal,  that  fact 
may  qualify  the  liabilities  arising  under  the  contract  pre- 
sumedly made  between  the  principal  and  third  persons. 

Perhaps  the  most  remarkable  of  all  applications  of 
contract  to  diminish  the  uncertainty  due  to  the  preca- 
riousness  of  human  life  and  to  the  prevalent  liability 
to  accidents  of  all  sorts,  by  which  calculation  is  baffled 
and  the  order  of  general  existence  disturbed,  is  the 
invention  of  contracts  of  Assurance.  These,  in  modern 
society,  take  a  large  number  of  forms,  according  as  the 
chances  of  death,  fire,  shipwreck,  storms  or  other  disasters, 


226  CONTRACT   OF  ASSURANCE. 

not  to  be  foreseen  yet  not  wholly  to  be  avoided,  seem  to 
call  for  them. 

There  is,  in  truth,  something  of  a  gambling  or  specu- 
lative element  in  this  class  of  contracts,  as  the  insurer 
foresees  only  an  indefinite  liability  to  certain  classes 
of  accidents.  He  may  be  fortunate  enough  to  escape 
altogether,  or  he  may  be  unfortunate  enough  to  meet 
with  more  accidents  than  one,  or  with  more  calamitous 
accidents  than  the  average.  A  vast  number  of  other 
insurers  are  in  the  same  position.  The  object  of  the 
contract  is  to  provide  a  machinery  for  making  such  joint 
and  regular  contributions  that  a  fund  may  be  available 
to  compensate  any  one  upon  whom  an  occasional  dis- 
aster, of  the  kind  insured  against,  may  fall. 

Thus  far  all  that  is  speculative  in  the  matter  is  so 
only  to  the  trifling  extent  that  each  contributor  pays  in 
proportion  to  what  he  takes  to  be  the  value  of  his  chance 
of  needing  to  resort  to  the  joint  fund  for  reparation  of 
loss.  But  the  form  these  contracts  take  is  not  usually 
that  of  a  contract  between  the  insurers  alone.  These 
persons  are  generally  too  numerous,  too  scattered,  and  too 
isolated  to  be  able  to  dispense  with  a  mediator  in  the 
character  of  a  person,  or  company  of  persons,  whose 
function  it  is  to  negociate  the  transaction;  and,  in  the 
course  of  doing  so,  to  remunerate  themselves  for  their 
trouble  and  risk  by  securing  that,  at  all  events,  more 
money  shall  be  paid  into  the  fund  by  contributors  than  is 
paid  out  to  repair  losses. 

It  is  the  "  assurance-company "  which  contracts  with 
each  of  the  insurers:  and  the  terms  at  which  the  periodical 
pajonents  or  "premium"  are  adjusted  are  always  fixed  on 
such  a  scale  that  the  company  must  in  no  case  lose;  must, 
if  the  losses  equal  the  average,  gain ;  and  may,  if  the 
losses  be  less  than  the  average,  gain  largely.  This  is 
really  a  "gaming"  contract,  that   is  one  which,  like  a 


CONTRACT   OF   ASSURANCE.  227 

lottery,  ensures  certain  gain  to  some  of  the  parties  to  it, 
and  certain,  though  indefinite,  loss  to  others.  Such  con- 
tracts are  generally  discouraged  by  the  policy  of  the  most 
advanced  modern  States,  as  tending  to  keep  up  a  feverish 
spirit  of  gambling  and  to  make  the  ignorant  and  poor  the 
principal  victims.  The  obvious  advantage  of  assurance 
contracts  and  the  spirit  of  general  providence  they  tend 
to  cultivate  at  once  lift  them  out  of  the  field  of  all  such 
criticism. 


CHAPTER  X. 

CRIMINAL  LAW  AND  PROCEDURE. 

The  topic  of  criminal  law,  while  it  is  one  of  the  oldest  and 
the  most  universal,  certainly  yields  in  importance  to  none 
in  a  complete  exposition  of  the  science  of  law.  The  difficulty 
of  treating  the  subject  in  what,  from  a  scientific  point  of 
view,  would  be  the  most  satisfactory  manner,  is  due  to 
the  peculiar  way  in  which  legal,  moral,  and  political  con- 
siderations are  here  so  intimately  blended  with  one  another. 
Even  the  purely  legal  view  of  the  topic  ought  strictly  to 
be  broken  up  into  two  parts,  that  relating  to  the  substance 
of  criminal  law  and  that  relating  to  criminal  procedure. 
But  these  two  parts,  again,  are  so  implicated  with 
one  another  that  it  is  practically  more  convenient,  and 
more  conducive  to  a  thoroughly  clear  statement  of  the 
whole  phenomena,  to  anticipate,  while  treating  of 
criminal  law,  so  much  of  the  general  subject  of  procedure 
as  concerns  criminal  procedure.  The  plan  here  adopted 
will  be  to  handle  the  subject  of  criminal  law  as  a  whole, 
not  scrupling  to  introduce  moral  and  pohtical  considera- 
tions when  they  obviously  present  themselves,  but  guard- 
ing none  the  less  sedulously  against  any  confusion  of 
those  considerations  with  such  as  are  only  legal  in  the 
most  strict  and  technical  sense. 

So  far  as  recent  historical  research  has  contributed  to 
throw  light  on  the  legal  development  of  primitive  com- 


PRIMITIVE   COXCEPTIOXS  OF   CRIME.  229 

munities,  it  would  seem  that  what,  at  a  later  stage,  grows 
into  a  system  of  criminal  law  appears,  at  the  earliest 
stage,  under  two  different  phases.  One  phase  has  relation 
to  private  life ;  and,  according  to  it,  a  crime  is  nothing- 
more  than  the  infringement  of  one  of  those  general 
rights  in  Avhich  all  members  of  the  community  equally 
share.  Such  rights  are  those  to  life,  to  free  locomo- 
tion, to  good  fame,  and  to  the  general  conditions  of 
a  healthy  physical  existence. 

These  rights,  at  first,  are  only  very  dimly  and  in- 
adequately appreciated.  They  are  discovered  rather  by 
the  conscious  shock  attending  the  first  early  violations  of 
them  than  by  any  antecedent  reflexion  upon  their  intrinsic 
importance.  They  are  looked  upon  as  belonging  to  indi- 
vidual persons,  and  not  as  having  reference  to  the  whole 
State — an  abstraction  which  it  is  wholly  alien  to  primitive 
ideas  to  declaim  about,  though  it  makes  itself  felt  in  a 
signal  way  which  will  shortly  be  described. 

Thus  a  large  part  of  early  criminal  law  covers  exactly 
the  same  ground  as  much  of  that  covered  in  modern 
societies  by  the  law  of  delicts  or  civil  injuries  or,  as  the 
mass  of  them  are  called  in  England,  torts.  From  this 
conception  flows  the  primitive  practice  of  "  composition  " 
for  certain  kinds  of  crimes,  and  the  identity  of  procedure 
in  criminal  law  (such  as  it  is)  with  that  observed  in 
matters  of  disputed  ownership  or  contract.  With  some 
ofiences  of  this  sort  a  strange  superstitious  element  is 
frequently  mixed  up,  especially  in  matters  touching 
human  life,  or  general  religious  duties.  In  the  Twelve 
Tables  it  is  impossible  to  distinguish  the  spirit  in  which 
mourning  for  the  dead  was  restricted,  burglary,  libels,  and 
sorcery  were  prohibited,  and  provision  was  made  for  a 
creditor  getting  satisfaction  for  his  debt  by  hewing  to 
pieces,  with  proper  foraialities,  the  body  of  his  debtor. 

The  other  phase  in  which  early  criminal   law  is  pre- 


230  CRIME  AND   THE   STATE. 

sented  is  closely  connected  with  the  development  of  the 
abstract  notion  of  the  State.  It  is  not  long  before,  in  the 
course  of  the  early  struggles  of  a  community,  a  blow  is 
inflicted  on  the  community  by  some  one  of  its  members 
which  causes  widespread  consternation  and  horror.  It  may 
take  the  form  of  an  act  of  disloyalty  and  treachery ;  or  of 
the  assassination  of  a  favourite  leader  or  benefactor ;  or 
of  the  slaying  of  some  private  person  with  circumstances 
of  pecuhar  cruelty  or,  as  in  parricide,  in  gross  violation 
of  the  dictates  of  nature. 

On  the  occurrence  of  one  and  another  of  such  acts  as 
these  the  national  consciousness  starts  into  existence :  the 
people  feel  themselves  injured  and  menaced  as  a  corporate 
whole.  A  common  compassion  for  an  immediate  sufferer 
mingles  with  a  common  apprehension  of  undefinable 
dangers  to  the  nascent  commonwealth.  The  result  is 
that  the  people  determine  to  judge  the  offender  them- 
selves, partly,  in  order  to  give  dignity  and  solemnity  to 
the  proceedings;  partly,  because  they  alone  are  com- 
petent to  assign  an  adequate  punishment,  or  to  avenge 
an  unprecedented  offence ;  and  partly,  because,  as  the 
injury  is  felt  to  be  directed  against  themselves,  their 
presence  is  as  necessary  as,  in  an  ordinary  case,  is  that  of 
the  private  person  despoiled  of  his  rights. 

Sir  H.  S.  Maine  describes  the  origin  of  this  view  of 
crime  in  his  "  Ancient  Law  "  (p.  372),  though  he  does  not 
seem  to  recognize  the  private  and  public  aspects  of  early 
criminal  law  as  necessary  co-existent.  His  words  are  as 
follows : — "  Yet  it  is  not  to  be  supposed  that  a  conception 
"  so  simple  and  elementary  as  that  of  wrong  done  to  the 
"  State  was  wanting  in  any  primitive  society.  It  seems 
"  rather  that  the  very  distinctness  with  which  this  concep- 
"  tion  is  realized  is  the  true  cause  which  at  first  prevents 
"  the  growth  of  a  criminal  law.  At  all  events  when  the 
"  Roman  community  conceived  itself  to  be  injured,  the 


SIR   H.    HIAINE   ON   PRIMITIVE  CRIMES.  231 

"  analogy  of  a  personal  A^rong  received  was  carried  out 
"to  its  consequences  with  absolute  literalness,  and  the 
"  State  avenged  itself  by  a  single  act  on  the  individual 
"wrong-doer.  The  result  was  that,  in  the  infancy  of 
"the  commonwealth,  every  offence  vitally  touching  its 
"  security  or  its  interest  was  punished  by  a  separate  enact- 
"  ment  of  the  legislature.  And  this  is  the  earliest  conception 
"  of  a  crimen  or  crime,  an  act  involving  such  high  issues 
"  that  the  State,  instead  of  leaving  its  cognizance  to  the 
"  civil  tribunal  or  the  religious  court,  directed  a  special 
"law  or  i:)rvvilegiu'ni  against  the  perpetrator.  Every 
"  indictment,  therefore,  took  the  form  of  a  bill  of  pains 
"and  penalties,  and  the  trial  of  a  criminal  was  a  proceed- 
"  ing  wholly  extraordinary,  wholly  irregular,  wholly  inde- 
"  pendent  of  settled  rules  and  fixed  conditions.  Conse- 
"  quently,  both  for  the  reason  that  the  tribunal  dispensing 
"justice  was  the  sovereigTi  State  itself,  and  also  for  the 
"  reason  that  no  classification  of  the  acts  prescribed  or  for- 
"  bidden  was  possible,  there  was  not  at  this  epoch  sinylaw 
"  of  crimes,  any  criminal  jurisprudence." 

It  is  not  necessary,  for  the  purpose  now  in  view,  to 
follow  Sir  H.  S.  Maine's  interesting  sketch  of  the  history 
of  criminal  law  in  Rome  and  in  England,  intermediate 
between  that  of  its  first  development  and  that  of  its  cul- 
minating point,  so  far  as  this,  in  England  at  least,  has  as 
yet  been  attained.  The  fii'st  two  phases  have  here  been 
dwelt  upon  in  some  detail  because  of  the  vivid  illustra- 
tion they  present  of  the  double  aspect  in  which  criminal 
law  always  presents  itself ;  and  which  aspect  imports  so 
much  perplexity  into  all  theories  on  the  subject  and  even 
into  the  procedure  of  criminal  courts. 

The  twofold  notion  that  by  a  crime,  in  most  cases, 
some  person  has  his  rights  violated,  and  at  the  same 
time  that  by  a  crime  the  State  is  more  directly  injured 
and  menaced  than  by  other  violations  of  rights  not  classed 


232  CRIME   AS   A   VIOLATION   OF   RIGHTS. 

as  crimes,  seems  to  be  permanent  and  universal  In  tlie 
case  of  an  ordinary  civil  injury — which  properly  includes 
every  violation  of  rights,  even  breaches  of  contracts — the 
State  is  only  injured  so  far  as  the  general  security  of 
rights  given  and  guaranteed  by  the  State  may  seem  to  be 
invaded.  On  this  gi'ound  the  State  leaves  the  injured 
pei-son  to  take  the  initiative  in  protecting  his  right  or  in 
obtaining  amends  for  its  violation. 

The  State  may  go  so  far  as  to  expect  a  person  inter- 
ested in  maintaining  a  right  to  be  vigilant  and  diligent 
in  giving  notice  of  its  infringement  to  the  proper  court 
of  justice,  and  even  to  give  securities  for  the  bona  fides 
of  the  complaint  and  of  a  resolution  to  proceed  with  it 
throughout.  Thereupon  the  State  provides  all  the  judicial 
machinery  needed  to  protect  the  right,  or  to  ascertain 
whether  it  needs  to  be  vindicated.  It  is  the  interest  of  aU 
persons  in  the  community  that  every  right,  of  whatever 
sort  it  may  be,  should  be  guarded  against  infringement. 
But,  as  respects  any  particular  right,  it  is  still  more 
eminently  the  interest  of  the  person  in  whom  it  vests 
that  it  should  be  respected.  On  these  grounds  it  is 
sufficient  for  the  State  to  rely  on  the  activity  of  in- 
dividual persons  to  take  the  initiative  in  upholding  theu' 
own  rights.  If  a  right  is  violated  with  impunity,  owing 
to  the  remissness  or  indulgence  of  the  person  most  con- 
cerned, the  injury  to  the  State  is  about  as  minute  as  can 
well  be. 

The  gist  of  a  crime  is  that,  quite  apart  from  the  effect 
on  the  general  security  of  rights  and  apart  from  the  loss  or 
suffering  to  individual  persons,  there  are  extrinsic  reasons 
why  the  act  constituting  the  crime  should  either  be 
wholly  prevented  or  be  made  of  the  rarest  possible  occur- 
rence. A  single  act  of  treason,  if  successful,  may  overturn 
tlie  Government;  and,  if  political  circumstances  do  not 
justify  it,  may  threaten  the  stability,  or  permanently  arrest 


I 


ESSENCE   OF   A   CRIME.  23^ 

the  gi'o^\-th,  of  the  State.  Every  murder,  punished  or  un- 
punished (though  more  so  in  the  latter  case  than  in  the 
former),  destroys  the  sense  of  personal  security,  and,  to 
that  extent,  defeats  one  great  object  for  which  the  State 
exists.  A  successful  forgery  carries  dismay  into  all  mer- 
cantile cu'cles  ;  and  a  solitary  case  of  perjury  scatters 
uncertainty  over  the  proceedings  of  every  court  of  justice 
in  the  country.     So  with  all  the  other  leading  crimes. 

The  object  of  the  State  is  to  devise  special  con- 
trivances, adapted  to  the  existing  condition,  of  society, 
and  more  particularly  to  the  circumstances  of  those 
classes  of  persons  by  whom  the  several  sorts  of  crimes  are 
found  to  be  commonly  committed,  so  that  the  occurrence 
of  crimes  may,  if  possible,  be  absolutely  prevented.  Some 
of  these  contrivances  take  the  form  of  a  vigilant  police, 
by  which  the  probability  of  offences  being  committed 
may  be  made  as  little,  and  that  of  the  detection  of 
offenders  may  be  made  as  great,  as  possible.  Other  con- 
trivances appertain  to  the  constitution  and  procedure  of 
criminal  tribunals;  others  again  to  the  application  of 
penalties,  the  choice  and  magnitude  of  which  must  be 
determined  by  a  mass  of  considerations,  the  nature  of 
which  will  be  described  lower  down.  Other  contrivances, 
again,  relate  to  modes  of  reforming  habitual  criminals  and 
of  removing,  as  far  as  possible,  the  more  obvious  incite- 
ments to  crime. 

The  whole  of  these  agencies  have  as  their  main  and 
immediate  end  the  diminution,  or,  if  possible,  the 
aboKtion,  of  crime,  though  some  of  these  agencies  may 
serve  other  useful  purposes  as  well. 

It  has  already  been  noticed  that  some  acts,  which  the 
State  designates  as  crimes,  are  nothing  more  than  viola- 
tions, in  certain  assigned  ways,  of  general  or  particular 
rights  of  private  persons.  Sometimes  the  same  act  may 
be  treated  either  as  a  civil  injur}"  or  a  crime,  because  it  is 


234  CRIMES  AND   CIVIL   INJURIES. 

in  fact  both.  It  will  rest  with  the  law  of  each  particular 
State  to  determine  how  far  in  that  State  a  person  may 
be,  at  the  same  time  and  by  the  same  process,  proceeded 
against  by  a  private  person  for  a  civil  injury  and  by  the 
State  for  a  crime.  This  is  allowable  in  France,  but  is  not 
allowable  in  England.  It  may  happen,  again,  that  the 
circumstance  that  distinguishes  a  crime  from  a  civil 
injury  is  one  purely  afi'ecting  the  mental  state  of  the 
offender,  and  not  in  any  way  qualifying  the  results  of  the 
offence. 

Thus,  in  the  case  of  a  person  being  seriously  injured 
by  a  railway  accident,  it  may  depend  on  the  condition 
of  the  engine-driver's  mind,  as  to  attention  to  signals 
and  the  like,  whether  a  mere  civil  action  can  be  brought 
against  the  company  for  an  injury  to  the  person,  or  a 
criminal  indictment  can  be  framed  against  the  servant  of 
the  company  for  manslaughter.  A  like  case  is  presented 
when  a  person  is  injured  through  being  improperly 
treated  by  a  doctor.  The  violation  of  the  person's  right 
to  be  skilfully  treated,  and  his  personal  loss  in  this 
respect,  may  be  exactly  the  same  whether  the  doctor  was 
simply  careless  or  was  maliciously  designing  his  patient's 
death. 

These  considerations  might  of  themselves  serve  to 
indicate  that  the  class  of  "crimes"  is  constructed  on 
wholly  different  principles  from  that  of  civil  injuries, 
though  in  certain  places  the  two  classes  overlap.  This 
will  be  all  the  plainer  when  it  is  borne  in  mind  what  a 
number  of  the  most  important  crimes  there  are  in  all 
countries  as  to  which  it  is  not  easy  to  say  that  the 
rights  of  any  person  whatever  are  infringed  by  their 
perpetration.  Such  are  all  crimes  immediately  directed 
against  the  State  itself  or  some  department  of  it,  or 
against  the  administration  of  public  justice. 

Treason, — in  some  of  its  manifestations,  and  when  the 


CRIMINAL   PROCEDURE   IN   ENGLAND.  ZoO 

stability  of  the  Government  alone  and  not  the  personal 
security  of  any  human  being  is  directly  menaced  by  it, — 
coining,  offences  against  the  revenue,  nuisances  on  public 
highways,  and  the  neglect  to  repair  bridges,  all  belong  to 
a  class  of  crimes  in  which  the  rights  of  persons  invaded  by 
them  are  either  so  vague,  so  remote,  or  so  indefinitely  and 
equally  diffused,  that  no  account  can  be  taken  of  them  in 
describinsj  the  offence.  The  cist  of  the  crime  in  each  case 
is,  not  that  the  rights  of  some  person  or  persons  are  invaded, 
but  that,  in  pursuance  of  a  policy  of  its  own,  arbitrary  or 
even  capricious  it  may  be,  the  State  absolutely  forbids 
such  acts,  and  every  measure  is  resorted  to  which  seems 
likely  to  render  them  as  infrequent  as  possible. 

The  distribution  of  acts  which  violate  rights  into  crimes 
and  civil  injuries  is  further  perplexed  by  the  accidental 
and  illogical  way  in  which,  in  some  countries,  as  in 
England,  the  line  has  historieally  been  drawn  between 
the  two.  There  are  some  parts  of  criminal  procedure  in 
England  which  presuppose  in  theory  that  the  object  of 
the  proceedings  is  the  vindication  of  a  private  right  and 
the  punishment  of  its  violation.  There  are  other  facts 
which  presuppose,  in  theory,  that  the  State,  as  represented 
technically  by  the  Sovereign,  occupies  the  place  of  a  civil 
plaintiff  in  the  prosecution  of  certain  classes  of  crimes. 
But  in  either  case  the  phenomenon  is  merely  based  on  an 
eccentricity  of  historical  development. 

It  took  a  long  time  in  England  for  the  two  notions  of 
the  interest  of  the  private  person  injured  and  the  interest 
of  the  Sovereign  to  find  their  proper  and  philosophical 
place  in  relation  to  each  other.  The  result  has  been  that, 
in  reference  to  the  forms  of  initiating  prosecutions,  the 
conception  of  the  interest  of  the  person  injured  has 
adhered  to  all  classes  of  crime,  though  the  practical  result 
is  only  so  far  significant  as  it  seems  to  interpose  a  barrier 
to  the  substitution  of  a  public  prosecutor.     The  notion  of 


286  MORAL  CONCEPTION   OF  A   CRIME. 

the  Sovereign's  interest,  connected  though  it  is  with 
the  celebrated  distinction  between  misdemeanours  and 
felonies,  has  scarcely  a  single  consequence  of  any  practical 
importance  at  the  present  day. 

Apart,  however,  from  the  particular  circumstances 
under  which  criminal  law  comes  into  being,  and  the 
special  modes  in  which  wrong-doing  is  distributed  into 
the  two  departments  of  civil  injuries  and  crimes,  there 
are  certain  internal  characteristics  of  crimes  which  are 
wholly  peculiar  to  them,  and  which  render  the  investi- 
gation of  the  true  nature  of  criminal  law  equally  difficult 
and  important. 

It  cannot  be  denied  that  criminal  law  is  very  closely 
connected  with,  and  dependent  upon,  the  existing 
condition  of  the  moral  sentiments  of  the  community. 
The  earlier  parts  of  this  treatise  will  have  sufficiently 
established  that  every  part  of  the  law  rests  on  an  ante- 
cedent moral  condition  which  alone  renders  its  creation 
and  general  acceptance  possible;  though,  on  the  other 
hand,  law  repays  the  debt  by  contributing  largely  to  the 
substantiation  and  support  of  moral  ideas.  Criminal 
law  is  ultimately  based  on  the  moral  conception  of  a 
crime  which  is  anterior  to,  though  also  co-existent  with, 
the  legal  conception.  Crime,  in  the  moral  use  of  the 
term,  and  in  the  mixed  moral  and  legal  use  (which  is 
the  popular  use),  sig-nifies  an  abominable  and  atrocious 
act  which  is  not  only  injurious  to  some  members  of  the 
community  and  dangerous  to  all,  but  which  proceeds 
from  some  exceptional  wickedness  in  the  person  who 
perpetrates  it. 

It  is  in  this  idea  of  "  wickedness  "  as  contrasted  with 
that  of,  what  may  be  called,  "  dangerousness"  that  the 
moral  conception  of  a  crime  differs  from  the  legal  con- 
ception.    The  common  judgment  of  mankind  estimates 


EVOLUTION   OF   THE   IDEA   OF   A   CRIME.  237 

an  act  not  only  by  its  actual,  or  possible,  consequences, 
but  by  the  general,  character,  in  respect  of  moral  excel- 
lence, of  the  agent,  and  also  by  the  thoughts  and  feelings 
of  the  agent  at  the  moment  of  action.  Thus  the  acts 
most  abominated  are  those  which  are  most  noxious  in 
their  actual  or  possible  results ;  which  are  done  by  the 
most  notoriously  vicious  men,  or  by  men  hitherto  reputed 
to  be  the  best  men ;  and  which,  in  any  particular  case 
under  consideration,  are  done  with  the  most  malevolent 
or  culpable  motives.  All  these  elements — some  of  them 
touching  the  act  itself,  and  some  of  them  touching  the 
agent,  either  looked  at  generally  or  under  special  con- 
ditions— properly  enter  into  the  estimate  of  an  act  from 
a  moral  standing-point. 

The  process  of  evaluating  acts  is  performed  roughly 
and  hastily  enough  by  the  bulk  of  the  community, 
who  have  neither  leisure,  knowledge,  nor  disposition  to 
look  very  far  or  very  deep.  It  is  performed  with  more 
precision  and  skill  by  the  moral  philosopher.  But  whether 
performed  superficially,  or  with  intelligent  and  con- 
scientious thoroughness,  the  process  of  evaluating  acts  is 
always  essentially  the  same,  and  the  elements  concerned 
in  it  are  identical  and  invariable. 

It  LS  natural,  then,  that  some  classes  of  acts  which 
usually  are  found  to  combine  all  the  conditions  by  which 
atrocity  is  measured  should  obtain  a  generic  name ;  and 
it  is  also  what  might  have  been  expected, — considering 
that  these  acts  are  among  those  which  it  must  ever  be 
the  policy  of  a  State  absolutely  to  prevent  from  so 
much  as  occurring  at  aU, — that  this  generic  name  should 
in  some  countries  be  also  the  generic  name  for  the  acts 
which  the  State  strains  its  uttermost  to  discourage  by 
that  part  of  the  law  which  is  called  criminal  law.  Thus 
the  term  crime  is  one  of  the  most  notable  meetin<'-^ 
points  of  law  and  morality. 


238  MORAL  AND   LEGAL  JUDGMENTS. 

It  has  thus  been  seen  that  "  wickedness  "  in  the  agent 
is,  from  a  moral  point  of  view,  one  of  the  indices  to  the 
atrocity  of  an  act  which  causes  suffering  or  loss  to  others. 
The  conception  of  "  wickedness "  must  itself  depend 
upon  the  moral  criteria  and  the  moral  standard  which 
]iappen  to  prevail  in  the  community  at  the  time.  The 
word  is,  no  doubt,  vague  and  indeterminate,  though  by 
no  means  without  intelligible  meaning.  It  implies  not 
only  the  absence  of  such  concern  for  the  welfare  of 
others,  and  especially  of  the  person  injured,  as,  in  the 
opinion  of  the  community,  ought  to  be  there ;  but 
possibly,  also  the  presence  of  sentiments  which,  in  theii* 
opinion,  ought  not  to  be  there.  It  imples,  furthermore, 
that  the  agent  was  free,  and,  either  at  the  moment  of 
action,  or  at  some  other  moment,  could,  if  he  had  wished, 
have  prevented  the  formation  of  the  state  of  mind  which 
ultimately  dictated  the  act. 

Thus  in  every  moral  judgment  on  an  act,  besides  the 
estimate  of  the  nature  and  consequences,  actual  or 
possible,  of  the  act  itself,  there  are  present  the  several 
notions  of,  first,  a  standard  of  right  sentiments ;  secondly, 
a  dictation,  or  moral  imperativeness,  which  dkects  con- 
formity with  that  standard;  and,  thirdly,  a  moral 
responsibility  or  accountability  in  every  one,  except  in 
circumstances  of  special  exculpation,  to  conform  to  that 
standard. 

The  treatment  of  the  self-same  acts  by  the  criminal 
law  is  illustrative  of  the  difierences  between  law  and 
morality,  and  of  their  relations  to  each  other.  Law, 
like  morality,  directs  attention,  in  the  fii'st  place,  to  the 
act  itself,  as  measured  and  circvmiscribed  by  its  con- 
sequences, actual  or  possible,  immediate  or  remote.  It 
enumerates,  with  such  precision  as  it  can  avail  itself  of, 
the  acts  to  be  abstained  from,  and  usually  classifies 
them  under  some  scheme  of  arrangement  suggested  by 


COMPARATIVE   IMPOTENCY   OF   LAW.  239 

the  gi-adations,  or  the  kind,  of  suffering  or  of  danger  they 
occasion,  hy  the  character  and  situation  of  the  sufferers, 
or  by  reference  to  mere  antiquarian  and  long  familiar 
divisions. 

In  the  second  place  law,  like  morality,  addresses  itself 
also  to  the  perpetrators  of  the  acts  it  forbids.  The  law, 
however,  is  here  considerably  at  fault,  and  is,  as  it  were, 
conscious  of  its  own  comparative  impotence.  The  notion 
of  "  wickedness"  involves  far  too  numerous  and  subtle 
considerations  to  render  it  a  possible  basis  of  a  judicial 
sentence.  Law  can  venture  so  far  in  psychological 
inquiry  as  to  determine  whether  an  alleged  act  was  really 
such,  and  was  preceded  by  an  exertion  of  the  will,  or 
whether  it  was  merely  an  event.  It  can  go  further 
and  test  the  intention  of  the  agent's  mind  at  the 
moment  of  acting.  In  other  words,  it  can  profess  to  ascer- 
tain the  attitude  of  his  mind  towards  the  immediate 
consequences  of  his  act.  Law  can  even  go  further  than 
this,  and  endeavour  to  discover  an  agent's  motive,  or  the 
remote  and  ulterior  consequence  of  which  he  was  in 
pursuit,  and  to  which  the  immediate  consequence  of  the 
act  was  only  a  transitional,  though  an  essential  step. 

This  analysis  of  the  presence  or  absence  of  will,  inten- 
tion, and  motive,  must  serve  to  throw  great  light  on  the 
condition  of  the  agent.  If  will  is  proved  to  have  been 
present,  the  act  was  a  true  act  for  which  the  agent  is 
accountable  to  law.  If  intention  is  proved  to  have  been 
present,  the  agent  knew  what  he  was  about,  what  was 
the  character  of  his  act,  and  what  might  be  expected  to 
follow  from  it ;  or,  at  least,  a  greater  or  less  amount  of  such 
knowledge  may  be  fairly  imputed  to  him.  If  a  motive  is 
discovered,  it  is  made  plain  whether  the  agent  desired  the 
consequences  of  this  act,  that  is,  either  the  immediate  or 
remote  consequences,  or  both  ;  or  whether  he  was  indif- 
ferent to  some  of  the  consequences  but  desired  others,  or 
onlv  desired  some  as  a  means  or  stepping-stone  to  others. 


240         INFLUENCE   OF   MORAL   SENTIMENTS   ON   LAW. 

Now,  the  question  is  presented  as  to  how  far  law 
has  thus  gone  in  competing  with  the  moral  investi- 
gation previously  alluded  to,  and  what  is  the  purport 
and  relevancy  of  the  competition. 

Throughout  the  enquiry  law  presupposes,  just  as 
morality  does,  a  canon  of  right  sentiment,  a  command 
that  every  one  shall  conform  to  that  canon,  and  a 
corresponding  legal  and  moral  responsibility  attaching 
to  everybody  who  does  not  conform  to  it.  Not,  of 
course,  that  law  ever  judges,  as  does  morality,  thoughts 
and  feelings  by  themselves,  and  apart  from  the  outward 
acts  which  are  the  sole  appropriate  matters  of  its 
cognizance;  but,  in  the  course  of  estimating  criminal 
liability  for  an  act,  of  which,  by  the  hypothesis,  the 
chief  characteristic  is  that  it  occasions  suffering  to  others, 
or  complex  dangers  to  the  State,  law  is  bound  to  examine 
with  scrupulous  care  the  mental  and  even  (so  far  as  it 
can)  the  moral  situation  of  the  person  accused. 

There  are,  indeed,  two  distinct  grounds  why  law, 
in  that  department  of  it  which  deals  with  crimes,  is 
compelled  to  conduct,  with  such  rude  instruments  as 
are  at  its  disposal,  a  quasi-moral  investigation  so  often 
as  the  legal  responsibility  of  an  alleged  offender  is 
called  in  question.  One  of  these  grounds  is  that  a 
large  number  of  legal  crimes  can  scarcely  be  described 
in  any  other  language  tlian  that  supjilied  by  the  popular 
dialect  of  the  day,  and  their  very  existence  is  largely 
based  upon  the  moral  notions  and  beliefs  current  at  the 
day. 

It  has  been  seen  that  for  the  construction  of  many 
classes  of  crimes  (in  the  legal  and  moral  sense  equally) 
moral  sentiments  and  State  policy  have  been  invari- 
ably at  one.  Murder,  robbery,  theft,  fraud,  house- 
breaking, burglary,  rape,  and  piracy  are  instances  of 
crimes  as  to  which  almost  as  correct  and  exact  a  notion 


MORAL  AND  LEGAL  TESTS.  24'1 

would  be  obtained  by  catechizing  the  first  passer-by 
in  the  street,  as  by  studying  the  most  carefully  considered 
judgments  or  the  most  elaborate  codes.  And  it  i^ 
probable  that,  however  completely  law  written  and 
codified  absorbs  unwritten  law,  increasing  civilization 
will  generate  new  forms  of  audacity  and  atrocity  which 
will  continue  to  be  designated  by  some  such  generic  term 
as  crimes.  It  may  also  be  expected  that  these  new  crimes, 
in  the  popular  sense,  will  be  successively  made  crimes 
in  the  legal  sense ;  and  that,  too,  by  the  spontaneous 
action  of  courts  of  justice  in  default  of  speedy  legislation 
or  amendment  of  the  code. 

It  thus  appears  that,  in  respect  to  large  and  important 
classes  of  crimes,  law  is  dependent,  in  some  measure,  on 
the  popular  sentiments  of  the  day  for  a  general  descrip- 
tion of  them.  It  has  also  been  shown  that  in  such  a 
description,  for  popular  vises,  the  element  of  wickedness 
or  mischievousness  occupies  a  conspicuous  place.  It  was 
further  indicated  that  this  last  element  could  not  be 
strictly  or  satisfactorily  inquired  into  by  the  admmis- 
trators  of  law,  and  that  the  only  inquiry  of  the  sort 
which  they  could  conduct  was  as  to  the  presence  or 
absence  of  motive. 

The  question,  then,  now  arises  as  to  how  far  the 
leofal  investigation  into  motives  coincides  with  the 
moral  investigation  into  wickedness  or  mischievous- 
ness. The  one  will  only  coincide  with  the  other  if 
it  is  determined  that  the  presence  of  cei-tain  definite 
sorts  of  motives  are  conclusive  signs  of  that  iniqui- 
tous state  of  mind  which  common  morality  condemns. 
Morality,  indeed,  could  accept  no  such  test,  because  it 
will  not  allow  the  region  of  considerations  appropriate 
to  itself  in  forming  a  judgment  to  be  narrowed  in  any- 
way. But  law  has  no  choice.  It  must  either  abandon 
the  task  of  keeping  large  classes  of  crimes  synonymous 


242     MORALITY   AS   AN    OBJECT    OF   THE   CRIMINAL    LAW. 

for  law  and  for  morality — an  issue  w^liich  would  so  much 
offend  the  sensibilities  of  the  community  as  to  be 
practically  out  of  the  question — or  it  must  submit  to 
convert,  at  every  point  of  the  judicial  process,  lax 
moral  impressions  into  definite  legal  axioms. 

There  is  another  ground  why  a  quasi-moral  investi- 
gation is  implied  in  the  administration  of  a  large  part 
of  criminal  law.  It  is  because  legislators  and  judges 
have  generally  endeavoured  to  improve  morality  directly 
by  the  engine  of  criminal  law. 

It  has  been  seen  that  the  true  use  and  purpose 
of  the  criminal  law  is  to  prevent  absolutely  (if  pos- 
sible) the  occurrence  of  those  acts,  which,  if  frequent 
or  more  than  very  rare  indeed,  must  result  in  the 
dissolution  of  the  whole  State.  A  subordinate  Y>nv- 
pose  is  the  support  in  the  most  effective  way  of 
important  classes  of  private  rights.  Yet  a  third  purpose 
has  generally  flitted  before  the  fancy  of  legislators 
and  judges,  and  has  largely  influenced  the  history 
of  criminal  law, — -that  of  directly  promoting  general 
morality.  It  is  no  doubt  an  object  worthy  enough  in 
itself,  though,  if  the  search  for  it  be  not  strictly  watched 
and  restrained,  other  and  more  appropriate  objects  may 
be  unconsciously  sacrificed  to  it. 

The  way  in  which  this  end  has  been  pursued  has  been 
to  turn  much  of  the  strength  of  the  judicial  investigation 
upon  the  moral  situation  of  the  accused  person.  In  fact, 
a  purely  moral  investigation  (though  delusive  from  its 
insufficiency)  has  been  substituted  for  a  legal  one.  A 
prisoner's  family  history  has  been  ransacked  to  estimate 
his  predisposition  to  crime,  the  story  of  his  education 
has  been  told,  all  the  influences  of  later  years  have 
been  enumerated,  not  in  order  to  prove  him  guiltless  on 
the  gi'ound  of  insanity,  but  to  ascertain  and  to  fix  the 


MALICE   AND   DOLUS.  243 

exact  degree  of  his  guilt.  The  fact  of  punishment  as 
an  adjunct  to  criminal  law,  and  of  its  possible 
graduation,  has  done  much  to  give  credit  to  this  inquisi- 
torial process.  But  the  tendency  of  such  modes  of  judicial 
investigation  is  to  substitute  the  idea  of  a  school  for 
that  of  a  criminal  tribunal  The  confusion  of  these  two 
ideas  leads  to  many  errors,  especially  in  relation  to  the 
assig-nment  and  choice  of  punishments.  This  subject 
will  come  under  consideration  later  on. 

The  peculiar  relations  of  legal  to  moral  ideas  in  the 
region  of  criminal  law  is  especially  marked  in  the  use 
of  such  terms  and  expressions  as  dolus,  dolus  malus, 
"malice,  and  malice  aforetJiought.  Such  language  occurring 
in  formal  criminal  indictments,  enhanced  as  it  is  in  some 
countries  by  direct  reference  to  the  deplorable  reiigious 
condition  of  the  culprit,  certainly  would  seem  to  point 
to  "wickedness,"  in  the  purely  moral  sense  above 
described,  being  the  final  test  of  criminal  liability. 

It  has  been  seen,  however,  how  it  has  come  about 
that  criminal  law  has  thus,  as  it  were,  strained  itself 
to  become  co-extensive  with  the  canon  of  moral  duty. 
But  the  attempt  has,  of  course,  been  vain,  and  it  needed 
a  very  short  course  of  development  in  legal  procedure  to 
expose  the  impotency  of  the  effort. 

The  wickedness — whether  called  dolus  or  mnalice,  or 
by  any  other  term — of  which  the  rough  mechanism  of 
courts  of  justice  could  alone  take  account,  must  be  sus- 
ceptible of  exact  description  and  general  recognition. 
Indeed,  through  the  insufficiency  of  the  analytical 
methods  in  its  hands,  law  must  often  avail  itself  of 
presumptions,  throwing  the  burden  of  their  disproof  upon 
the  person  accused;  and  sometimes,  under  the  guidance 
of  a  discreet  policy,  it  must  raise  presumptions  of 
"  wickedness "  without  any  probable  foundation  in  fact. 


244  PRESUMPTION   OF  MALICE. 

and  without  any  opportunity  being  allowed  to  the 
accused  of  removing  them. 

In  English  law,  the  expressions  habitually  used  in  in- 
dictments, "maliciously"  and  "with  malice  aforethought," 
as  well  as  some  of  those  current  in  legal  judgments 
and  literature  as  "malice  in  fact,"  "malice  in  law," 
"express  malice"  and  "implied  malice"  arej^nly  capable 
of  being  explained  and  brought  into  harmony  with 
each  other  by  the  help  of  such  considerations  as  the 
above.  What  constitutes  "  malice, "  that  is,  the  sort 
and  degree  of  wickedness  of  which  alone  the  law  is 
cognizant,  is  again  matter  for  exact  legal  circumscription ; 
and  such  circumscription,  as  applicable  to  particular 
crimes,  such  as  murder,  libel,  and  injuries  to  property,  is 
gradually  wrought  out  by  the  concurrent  decisions  of 
successive  generations  of  judges  or  else  is  formulated  in 
statutes  and  codes. 

In  the  course  of  creating  a  distinct  legal  measure  of 
wickedness  it  is  found  that,  owing  to  the  impossibility 
of  always  exploring  satisfactorily  even  those  coarser  states 
of  mind,  which  are  not  generally  beyond  the  reach  of  the 
instrumentality  in  the  hands  of  law,  a  vast  number  of 
offences  or  pernicious  acts  of  serious  detriment  to  the 
commonwealth  are  likely  to  go  unpunished.  On  this 
ground,  in  the  case  of  any  one  being  found  in  a  situation 
which,  as  a  matter  of  experience,  is  found  to  indicate 
(though  not  conclusively  to  establish)  criminality,  he  is 
called  upon  to  assist  the  administration  of  justice  so  far 
as  to  disprove  positively  his  o-v\ti  guilt.  In  other  words, 
malice  is  "implied"  or  presumed,  and  the  accused  must 
repel  the  presumption,  at  his  own  peril  if  he  fails. 

There  are  cases,  indeed,  in  English  and  in  Roman  law 
in  which  apparently  harsher  steps  are  taken  than  this, 
and  the  presumption  of  malice  is  raised  and  is  not  allowed 
to  be  rebutted  even  in  cases  where  wickedness,  in  the 


MR.  AUSTIN'S  ANALYSIS  OF  CRIMINALITY.  245 

common  sense  of  the  term,  is  proved  not  to  have  been 

present.     Such  are  cases  in  which  excessive  negligence  is 

said  to  amount  to  malice ;   as  happens  in  English  law 

when  a  person  has  thoughtlessly  killed  another  with  a 

weapon  which  is  of  a  very  dangerous  character  and  might 

have   been   known  to    be   likely  to   kill.     Mr,   Austin 

has  criticized    the    Latin   phrase   expressing   this   mode 

of  imputation    {culpa    dolo    comparatur),   and   objects 

that  culj)cc  eminently  signifies  the  absence  of  a  thought 

which  ought  to  have  been  in  the  mind,  and  dolus  the 

presence  of  one  which  ought  not  to   have  been  there. 

The   true  meaning,   however,   and  justification   of  the 

maxim,  is  the  above,  that  the  legal  consequences  of  neglect 

are  judicially  made  to  be  the  same  as  those  of  actual 

wickedness. 

The  above  account  of  the  legal  systematization  of  the 

moral  notion  of  "  wickedness  "  may  be  further  illustrated 

by  Mr,  Austin's  valuable  analysis  of  the  elements  of  legal 

responsibility  in  his  "  Notes  on  Criminal  Law  "  appended 

to  the  different  editions  of  his  lectures.     He  says,  "  Every 

"crime  supposes,  on  the  part  of  the  criminal,  criminal 

"  knoivledge  [criminal  consciousness]  or  negligence  [crimi- 

"  nal  inattention,  criminal  inadvertence],  I'el  scienter  vet 

"  negligenter."     "Criminal  knowledge"  he  further  divides 

into    "  criminal,   unlawful,    or   evil    design    [intent    or 

purpose],"   and  "criminal  knowledge   short   of   criminal 

design."      The  former,  he   says,  is   present  "  where   the 

"production  of  the  mischievous  consequence  which  the 

"  law  seeks  to  prevent  is  an  end  (or  object),  ultimate  or 

"mediate,  of    the   criminal;    and   where,  therefore,  the 

"criminal  vAshes  (or  ^vills)  the  production   of   it;    e.g., 

"  murder,  or  arson,  out  of  malevolence;  murdering  to  rob ; 

"theft."     In  each  of  these  cases  the  production  of  the 

mischievous  consequence  is  the  "  very  end  of  the  criminal, 

or,  at  least,  is   a   means  to  its  attaimnent."     Criminal 
12 


24G  THEORY    OF    EXCULPATION. 

knowledge,  short  of  design,  Mr.  Austin  says,  is  present 
"where  the  production  of  the  mischievous  consequence 
"  which  the  law  seeks  to  prevent  is  not  an  end,  ultimate 
"or  mediate,  of  the  criminal;  but  where  he  knows  that 
"such  mischievous  consequence  (though  he  does  not  wish 
"  the  production  of  it)  will  follow,  necessarily  or  probably, 
"his  act  or  omission;  e.g.,  arson  of  a  house  adjoining  his 
"  own,  through  his  setting  fire  to  his  own,  with  intent 
"  to  defraud  his  insurers.  The  destruction  of  his  neigh- 
"  hour's  house  will  not  subserve  his  end ;  but  he  knows 
"  that  the  destruction  of  his  neighbour's  house  will  follow, 
"  necessarily  or  probably,  the  firing  of  his  own." 

The  very  possibility  of  this  exact  analysis  and  classi- 
fication of  the  states  of  mind  of  which  a  mature  system 
of  criminal  law  alone  takes  notice  marks,  of  itself,  the 
distance  which  law  has  travelled  from  the  time  at  which 
the  notion  of  legal  and  moral  criminality  were  scarcely  dis- 
tinguishable. A  similar  opposition,  and  yet  likeness,  in 
legal  and  moral  tests  is  supplied  by  a  consideration  of 
grounds  of  exculpation,  a  subject  which  forms  as  it  were 
the  negative  or  back  view  of  criminal  liability. 

It  is  obvious  that,  inasmuch  as  all  crimes  are  acts  or 
omissions,  all  the  reasons  which  aftect  the  legal  character 
or  validity  of  any  other  alleged  act  or  omission  must 
apply  to  them,  though  (as  will  be  seen)  some  further 
reasons  of  that  nature  there  are  which  specially  apply  to 
them  alone.  Thus  if  a  person  cannot  perform  a  voluntary 
act,  or  at  any  rate  the  voluntary  act  which  the  law  com- 
mands him  to  perform ;  or  if  a  person's  mind  and  muscles 
are,  through  disease  or  external  violence,  so  far  out  of 
natural  accord  with  each  other  that  an  act  commanded 
was  impossible  under  the  circumstances ;  or  that  which 
seems  to  have  been  the  forbidden  act  was  not  an  act  at  all, 
but  only  an  event  over  which  the  agent  had  no  control ; 
in  sucli  cases  exculpation  follows  as  of  course.    An  event, 


GROUNDS  OF  EXCULPATION.  247 

indeed,  has  happened  or  has  not  happened;  but  there  is 
no  person  who  has  any  mental  relation  to  it,  however 
much  he  may  have  ph^^sically  intervened  in  causing  or 
preventing  it. 

But,  further,  acts  are  qualified,  in  the  eyes  of  the  law, 
according  to  their  immediate  consequences ;  and  the  doers 
of  them  (if  they  are  acts  forbidden  by  law)  are  respon- 
sible according  to  this  mental  attitude  towards  those 
consequences,  at  the  moment  of  acting  ;  in  other  words, 
according  to  their  intention.  This  intention,  being  a 
hidden  mental  state,  can  only  be  judged  of  by  reference 
to  a  multitude  of  circumstances,  including  among  others 
the  attitude  of  the  agent's  mind  towards  the  ulterior  con- 
sequences of  his  act ;  that  is,  his  susceptibility  to  the 
influences  of  a  motive. 

Now,  this  capacity  to  apprehend  the  immediate  con- 
sequences of  an  act  and  to  be  allured  or  deterred  by  its 
remoter  consequences  must  depend  upon  two  conditions 
being  satisfied;  one  that  of  sufiicient  mental  foresight 
to  look  steadily  beyond  the  muscular  motion  in  which 
the  act  itself  consists  ;  the  other,  that  of  sufficient 
experience  and  knowledge  of  the  general  consequences 
of  the  class  of  acts  to  which  that  under  consideration 
belongs  in  order  to  predict  both  the  immediate  and  tlie 
remoter  consequences  of  this  particular  act.  The  general 
incapacitating  circumstances  which,  in  certain  cases,  pre- 
vent these  conditions  being  satisfied  are  well  known  to  be 
such  as  infancy,  idiocy,  insanity,  special  inexperience  (as 
that  sometimes,  and  for  some  purposes,  imputed  to  women, 
sailors,  young  men,  and  foreigners),  and  fraud  or  violence. 
It  must  depend  upon  the  nature  of  the  act  or  classes  of 
acts  in  question,  how  far  these  several  causes  of  in- 
capacity exempt  from  ordinary  liability. 

Most  of  these  causes  of  incapacity  are,  further, 
capable  of  graduation,  and  it  may  form  one  of  the  most 


248  LEGAL   TESTS   OF  IMPUTABILITY. 

perplexing  parts  of  a  judicial  investigation  to  determine 
how  far  any  one  of  them  is  present  in  any  particular 
case.  In  the  present  place  it  is  important  to  notice  that 
the  test  of  special  incapacity  is,  usually,  applied  differently 
in  the  execution  of  the  criminal  law  and  in  that  of  all 
other  parts  of  the  law. 

It  has  been  seen  that  a  large  part  of  the  criminal  law 
of  every  country  is  co-extensive  with  a  large  part  of  the 
moral  system  prevalent  at  the  time  in  that  country.  The 
same  acts  and  classes  of  acts  are  forbidden  by  both,  though 
morality  forbids  a  great  deal  more  than  the  outward  act 
forbidden  by  law,  and  applies  much  keener  instruments 
than  any  which  law  possesses,  in  the  process  of  ascertain- 
ing whether  or  not  its  dictates  have  been  conformed  to. 
Nevertheless  law,  depending,  as  it  needs  must,  for  its  exe- 
cution upon  the  co-operation  of  a  number  of  persons,  all 
speaking  the  language  and  replete  with  the  sentiments 
of  the  current  morality,  cannot  prevent  a  quasi-moral 
interpretation  being  constantly  put  upon  the  terms  it  is 
trying  to  rescue  from  a  lax  and  uncertain  use. 

The  general  result  is  that,  for  a  large  and  important 
part  of  the  criminal  law,  legal  and  moral  crimes  are 
always  tending  to  actual  convergence,  but  never  attain- 
ing it.  This  being  so,  it  is  not  to  be  wondered  at  that 
courts  of  criminal  justice  should  presume  a  more  diffused 
acquaintance  with  the  chief  rules  of  the  criminal  law 
than  with  those  of  any  other  part  of  the  law,  and 
should  even  substitute  the  test  of  liability  supplied  by 
the  current  moral  sentiments  of  the  day  for  the  more 
artificial  one  which  the  application  of  less  well-known 
parts  of  the  law  necessitates. 

For  instance,  it  may  be  well  to  say  that  no  person 
under  the  age  of  fourteen,  twenty-one,  or  twenty-five 
(as  the  case  may  be),  has  sufficient  experience  of  the 
world  to  make  a  Will  or  an  important  contract.    Looking 


CIVIL   AND    CRIMINAL   INCAPACITY.  240 

at  the  actual  circumstances  of  society,  at  the  age  at  which 
juvenile  instruction  usually  ceases,  and  at  the  effects  of 
climate  in  developing  precocity, — and  bearing  in  mind 
that  certainty  and  universality  in  the  rule  are  of  the 
greatest  moment, — some  presumption  founded  on  experi- 
ence must  be  raised  and  an  immovable  rule  based  upon 
it.  Or,  to  take  another  case,  it  may  be  well  to  estimate 
differently,  and  yet  precisely,  the  legal  consequences  of 
the  same  stage  of  insanity,  according  as  the  purpose  is  to 
test  the  validity  of  a  marriage,  a  bill  of  exchange,  a  Will, 
or  a  trespass,  having  reference  to  that  stage;  and  it  is 
probable  that  general  rules  based  upon  experience  gathered 
within  the  walls  of  courts  of  justice  themselves,  and 
therefore  of  rather  an  incompressible  and  technical  kind, 
will  be  framed  for  the  regulation  of  those  consecjuences. 

But,  in  criminal  law,  the  test  of  age,  sanity,  or  moral 
and  physical  freedom  will  be  a^Dplied  in  far  closer  connec- 
tion with  that  pursued  in  the  common  judgments  of 
mankind  In  Encrland,  for  instance,  however  demonstrable 
may  be  a  case  of  insanity  on  all  other  grounds  and  for  all 
other  purposes,  the  mere  capacity  of  knowing  that  the 
act  was  morally  wi'ong  is  held  to  be  a  sufficient  ground  of 
criminal  imputability.  So,  after  the  age  of  seven,  evidence 
is  admissible  to  prove  the  presence  of  such  exceptional  pre- 
cocity as  may  rebut  the  general  presumption  of  innocence. 

If  the  criminal  law  was  not  supposed  to  stand 
upon  quite  a  different  footing  in  respect  of  a  diffusion  of 
a  knowledge  of  it  and  of  its  close  correspondence  with 
the  leading  principles  of  morality  current  in  the  State  at 
the  time,  these  practices  would  be  glaringly  cruel  and 
unjust.  But  so  far  from  being  so  (although  they  admit  of 
many  improvements),  they  are  obvious  expedients  for 
combining  the  policy  of  executing  the  criminal  law  in  a 
rigorously  universal  manner  Avith  that  of  exculpating 
persons  proved  to  be  irresponsible. 


250  ACCESSORIES. 

It  may  be  doubted,  indeed,  whether  the  extension  of 
the  principle  to  the  protection  of  a  wife  who  commits  a 
crime  in  the  presence  of  her  husband  is  altogether  favour- 
able to  public  morality,  or  to  the  encouragement  of 
wholesome  relations  between  husbands  and  wives.  And 
it  is  certain  that,  from  a  medical  point  of  view,  the  test 
of  a  prisoner  knowing  that  an  act  was  morally  wrong, 
is  a  most  insufficient  test.  It  is  an  instance  of  the 
inevitable  tendency  of  the  best  and  of  the  originally 
most  elastic  legal  processes  to  harden  into  stringent  rules. 

Thus  it  is  in  accordance  with  what  is  best  in  the 
principle  above  expounded  that  when  insanity  is  alleged 
as  a  ground  of  criminal  exculpation,  not  only  the  fact  of 
it,  but  the  nature  and  extent  of  it,  should  be  search- 
ingly  investigated.  But  it  is  against  that  principle  to 
apply  the  test  of  mere  knowledge  on  the  patient's  part 
of  either  moral  or  leo-al  facts. 

That  attention  is  directed  in  the  execution  of  criminal 
law  to  the  mental  situation  and  antecedents  of  the 
accused,  in  a  much  higher  degree  than  in  the  execution  of 
other  pai-ts  of  the  law,  is  obvious  from  various  indications 
supplied  by  the  legal  systems  of  all  countries.  Participa- 
tion in  a  crime,  even  to  the  limited  extent  of  what  is 
meant  in  the  language  of  English  statutes  by  "aiding, 
abetting,  comforting,"  must  necessarily  come  under  the 
control  of  the  criminal  law,  as  much  as  doing  the  main 
act  in  which  the  crime  characteristically  consists.  But 
participation  admits  of  an  indefinite  number  of  degrees ; 
and  though  it  may,  at  one  end  of  the  scale,  be  scarcely,  if 
at  all,  distinguishable  from  the  actual  committal  of  the 
offence,  yet,  at  the  other  end,  it  may  be  shaded  off  indefi- 
nitely till  it  becomes  nothing  more  than  a  latent  personal 
sympathy  of  some  sort,  possibly  after  the  act,  with  the 
true  offender.     To  describe  in  terms  or  to  test  by  a  judicial 


TREASON    STATUTE   OF   EDWARD   III.  251 

scrutiny  the  exact  kind  and  degree  of  participation  which 
is  properly  criminal  is  an  extremely  arduous  task,  and 
can  only  be  achieved  by  fixing  attention  upon  a  number 
of  purely  mental  or  moral  circumstances  connected  with  the 
offence  and  the  offenders.  The  process  is  furthermore  a  very 
precarious  one  for  public  liberty,  and  affords  openings  for 
the  most  flagitious  abuses,  especially  in  the  case  of  offences 
against  the  Government.  The  only  securities  against  such 
abuses  are  to  be  found  (1)  in  a  precisely  written  rule  of 
law,  explained  and  limited  by  interpretation  clauses  or 
illustrative  cases ;  and  (2)  in  a  mode  of  appointing  and 
maintaining  in  office  judges  whose  ability  shall  be  of  the 
highest  quality,  and  whose  political  motives  shall  be  above 
suspicion. 

The  whole  history  of  the  English  criminal  law  is  a 
remarkable  monument  of  the  perilous  tendency  in  this 
part  of  the  law  to  overstep  its  natural  bounds,  and  to 
become  transformed  into  an  instrument  of  moral  inquisi- 
tion, and  thereby  of  political  tyranny.  This  is  especially 
illustrated  in  the  cases  of  treason  and  of  certain  (so  called) 
"  misdemeanours,"  particularly  that  of  conspiracy.  The 
law  of  criminal  libels  might  also,  in  some  of  its  aspects,  be 
cited  to  the  same  purpose. 

It  is  said  to  have  been  the  uncertainty  of  the  law  of 
treason  and  the  abuses  to  which  that  uncertainty  gave 
rise  which  occasioned  the  enactment  of  the  leading,  and 
stiU  subsisting,  statute  on  the  subject,  that  of  the  twenty- 
fifth  year  of  Edward  III.  It  is  curious,  however,  that 
even  the  legislature,  wliich  enacted  that  statute,  expressly 
for  the  purpose  of  Anally  removing  doubts  and  of  arresting 
the  arbitrary  definitions  of  the  crime  of  treason  which  were 
constantly  springing  up,  seem  to  have  distrusted  their 
own  work,  and  by  express  words  left  it  open  to  the  judges 
to  consult  the  legislature  as  often  as  they  chose,  as  to 
whether  any  new  crime  akeady  committed  did  fall  within 


252  CONSTRUCTIVE  TREASON. 

the  statute  or  not.  The  history  of  the  "constructive'* 
treasons  which  have  been  built  upon  this  celebrated  Act 
is  well  known.  The  terms  of  the  Act  themselves  are 
remarkable  in  the  present  relation  as  showing  how  feebly 
an  immature  society  grasps  after  the  true  functions  of 
criminal  law  and  yet  how  imperiously  the  necessity  of  the 
case  obliges  them  to  do  homage  to  those  functions. 

The  Statute  of  Treasons,  and  those  later  ones  which 
are  based  upon  it,  are  the  only  important  laws  in  England 
which  are  expressly  directed,  not  against  outward  acts,  but 
against  mental  states.  The  main  offence  is  "  compassing 
or  imao[inin£^ "  the  death  of  the  kin^  The  test  of  the 
offence,  however,  is  the  being  "  provably  attainted  of  open 
deed."  Thus  the  open  deed  was  not  the  offence,  but  the 
evidence  of  the  ofi'ence.  In  the  progress  of  time  and  of 
public  liberty  the  nature  of  the  crime  became  more  and 
more  precisely  described  by  a  long  series  of  judicial  deci- 
sions, and  the  sort  of  evidence  essential  to  conviction  more 
and  more  accurately  defined  by  statutes. 

Though  the  statute  of  Edward  III.  is  still  in  force,  it 
is  not  probable  that  the  constructive  extensions  of  it 
would  be  revived  at  the  present  day,  should  an  indict- 
ment be  framed  upon  it.  Recent  statutes,  however,  of 
the  present  reign  have,  by  converting  into  ordinary 
felonies  a  vast  number  of  offences  previously  compre- 
hended, by  constructive  interpretation,  under  the  statute 
of  Edward  III.,  gone  far  to  supersede  the  necessity  for 
I'ecourse  to  that  statute. 

The  history  of  the  English  distinction  between  felonies 
and  misdemeanours,  and  of  the  gradual  construction  of  the 
latter  class  of  crimes,  is  a  further  instance  of  the  divergence 
from  its  true  course  to  which  criminal  law  is  peculiarly 
prone.  The  earliest  crimes  known  to  English  law  seem  to 
have  been  all  classed  either  as  treasons  or  felonies.     Both 


FELONIES  AND  MISDEMEANOURS,  253 

these  classes  of  crimes  had  relation  to  the  feudal  obliga- 
tions which  every  one,  except  the  king,  owed  to  a  superior 
lord.  "  Treason  "  was  a  positive  offence  against  the  lord's 
person  or  authority,  and  implies  (as  Blackstone  says)  in 
its  very  name,  "  a  betraying,  treachery  or  breach  of  faith." 
"Felony"  is  a  far  more  general  term,  though  of  very  doubt- 
ful etymology.  It  imports  all  those  offences  of  which  the 
feudal  consequence  was  the  forfeiture  of  all  the  offender's 
lands  and  goods.  Thus  the  original  definition  of  the  only 
term  what  covered  the  most  signal  crimes  was  entirely 
based  on  the  technicalities  of  the  feudal  system,  and  no 
space  was  left  for  offences,  however  injurious  to  others  or 
detrimental  to  the  commonwealth,  which  did  not  fall 
within  the  definition. 

Gradually,  however,  the  courts  of  justice  elaborated 
a  new  class  of  offences,  in  accordance  with  the  demands 
of  a  rapidly  developing  society.  The  technical  mode  in 
which  this  new  class  of  so-called  "  misdemeanours  "  first 
came  to  the  surface  was  by  treating  them  (as  they  are 
technically  treated  at  this  day)  as  civil  injuries,  delicts 
or  "torts,"  in  which  the  Crown  represents  the  person 
injured,  or  plaintiff!  From  the  nature  of  the  case,  how- 
ever, there  was  no  limiting  defuiition  of  misdemeanours 
to  start  with;  and  the  only  description  of  them  that  could 
be  given  would  be  that  of  such  infractions  of  the  public 
peace  or  of  private  rights  as  were  not  contained  in  the 
class  of  felonies,  and  yet,  from  a  joint  moral  and  political 
standpoint,  demanded  punishment  and  repression.  It 
has  been  said  that  the  very  laxity  of  such  a  description 
as  this  was  of  great  service,  because  it  enabled  courts  of 
justice  to  keep  pace  with  the  unceasing  aggressions  of 
infiuential  persons  who  were  exempt  from  all  other  con- 
trol and  would  readily  have  evaded  any  precisely  written 
rules  of  law.  This  may  be  historically  true,  but  it  is  ouly 
saying  in  other  words  that,  in  a  barl)arous  condition  of 


254!  ATTEMPTS  TO   COMMIT   CRIMES. 

society,  law  has  a  very  feeble  liold  on  even  the  weightiest 
persons  in  the  country;  and  therefore  that  a  subtitute, 
however  rough  and  perilous,  must  be  found  for  law  in 
the  despotic  powers  conceded  to  courts  of  justice.  It  is 
a  defence  of  tjrranny  as  the  only  refuge  from  anarchy. 

Of  the  actual  misdemeanours  gradually  created  in  the 
way  above  described,  the  creation  of  some  has  really  con- 
formed to  the  true  aims  of  the  criminal  law,  while  that 
of  others  has  signally  conflicted  with  those  aims.  Among 
those  misdemeanours  the  recognition  of  which  is  attended 
with  the  greatest  public  advantage  are  attempts  to  com- 
mit grave  crimes. 

There  is  often  a  moral,  and  always  a  political,  dis- 
tinction between  an  inchoate  and  a  consummate  crime. 
It  may  often  be  that  a  person  pauses  on  commencing  to 
commit  an  offence  and  is  brought  to  a  better  mind  by  the 
A'^ery  imminence  of  his  own  further  action.  He  has 
willed  the  first  step  in  the  offence  and  has  taken  it ;  but 
as  yet  has  not  willed,  or  at  least  has  not  taken,  a  further 
step.  There  is  every  reason  for  encouraging  an  offender 
to  pause  at  this  stage;  and  this  may  be  effected  by 
varying  the  penalty  at  each  stage  of  the  offence,  assum- 
ing the  offence  to  be  a  divisible  one. 

The  difficulty  is  that,  though  the  consummate  crime  may 
be  in  the  highest  degree  definite,  what  is  an  attempt  may 
be,  in  an  equal  degree,  indefinite.  In  the  one  case  the 
completed  act  throws  a  backward  light  upon  the  intention; 
in  the  other  case  the  absence  of  a  comj^leted  act  renders 
the  intention,  at  the  best,  ambiguous,  and  therefore  one 
the  true  character  of  which  must  be  collected  from  sur- 
rounding circvmistances.  Thus,  when  a  homicide  has  been 
actually  committed,  it  may  indeed  call  for  a  very  long  and 
anxious  inquiry  to  determine  whether  it  is  a  murder,  a 
manslaughter,  or  accidental  and  justifiable  killing.  But 
if  no  man  has  been  killed,  and  the  only  evidence  there  is 


"misprision"  of  treason.  255 

points  to  some  one  having  injured  another  in  a  way  which 
might  possibly  have  resulted  in  death,  the  question 
whether  the  injury  was  an  ineffectual  attempt  to  murder 
or  was  a  completed  act  of  its  kind  must  depend  upon  a 
far  larger  and  more  complex  class  of  considerations. 

So  in  the  English  offence  of  "  misprision  "  of  treason, 
which  is,  in  fact,  a  sort  of  misdemeanour,  though  generally 
called  by  its  own  specific  name,  the  offence  is  one  that 
in  some  aspects  might  seem  purely  mental  and  therefore 
open  to  the  most  dangerously  uncertain  constructions. 
"  Misprision  of  treason,"  says  Blackstone,  "  consists  of  the 
bare  knowledge  and  concealment  of  treason,  without  any 
degree  of  assent  thereto,"  This  concealment  becomes 
criminal  if  the  party  apprised  of  the  treason  does  not, 
as  soon  as  conveniently  may  be,  reveal  it  to  some  judge 
of  assize  or  justice  of  the  peace.  Thus,  m  truth,  the 
actual  offence  is  the  not  revealing  the  treason  in  the  way 
prescribed. 

But  the  most  remarkable  illustration  of  the  dano-erous 
licence  into  which  judicial  legislation  on  criminal  law 
is  apt  to  run  is  supplied  by  the  English  law  of  con- 
spiracy, a  law  which  has  been  defended  in  some  quarters 
on  the  very  ground  of  the  arbitrary  power  it  places  in 
the  hands  of  judges,  and  of  the  limitations  of  public 
liberty  which  it  renders  possible  under  the  cloak  of  legal 
prosecutions. 

"The  modem  law  of  conspiracy,"  says  Mr.  R.  S. 
Wright,  in  his  erudite  and  exliaustive  treatise  on  the 
subject,  "has  grown  out  of  the  application  to  cases  of  con- 
"  spiracy,  properly  so  called,  and  as  defined  by  the  statute 
"of  the  88  Edw.  I.,  of  the  early  doctrine  that  since 
"  the  gist  of  a  crime  was  in  the  intent,  a  criminal  intent 
"manifested  by  any  act  done  in  furtherance  of  it  might 
"  be  punishable,  although  the  act  done  did  not  amount  in 
"  law  to  an  actual  attempt."     Mr.  Wright  goes  on  to  point 


256  THE   ENGLISH    LAW  OF   CONSPIRACY. 

out  how  the  doctrine  gradually  took  form  that  the 
criminality  of  a  conspiracy  is  not  to  be  measured  by  the 
criminality  of  the  object  of  the  conspiracy,  and  that  "it 
has  long  been  established  law  that  a  combination  to 
defraud  may  be  criminal,  although  the  proposed  deceit  is 
not  such  as  would  be  criminal  apart  from  the  combina- 
tion." It  will  be  seen  at  once  how  inimical  this  principle 
is  to  public  liberty,  when  it  is  recollected  upon  what 
uncertain  and  multifarious  sorts  of  evidence  the  fact  of 
conspiracy,  that  is,  of  an  agreement  between  two  or  more 
persons  to  do  acts  of  certain  specific  kinds,  must  generally 
be  established.  How  A^ague  and  how  far  related  to  merely 
moral  considerations  might  be  the  object  of  an  indictable 
conspiracy  will  be  understood  from  the  following  language 
of  Lord  Mansfield  in  1773  : — "  Whatever  is  contra  bonos 
mores  et  decorum  the  principles  of  our  law  prohibit,  and 
the  king's  court,  as  the  general  censor  and  guardian  of  the 
public  manners,  is  bound  to  restrain  and  punish,"  This 
passage,  indeed,  may  be  called  the  reductio  ad  ahsurdum 
of  that  theory  of  the  criminal  law  which  treats  it  as  a 
direct  instrument,  more  than  anything  else,  of  improving 
national  morality.  The  mere  description  of  the  general 
principle  which  has  underlain  the  English  law  of 
conspiracy  is  in  itself  a  sufficient  refutation  of  the  theory 
because  of  the  moral  and  political  dangers  it  conceals 
under  a  most  plausible  outside. 

Sometimes  a  crime  is  said  to  be  aggravated,  and  even 
its  name  changed,  if  it  be  committed  concurrently  with 
other  crimes,  or  by  a  person  previously  convicted  of  crimes 
of  a  like  nature.  In  these  cases,  the  moral  condition  of 
the  prisoner  as  a  subject  of  punishment  is  the  only  reason 
for  altering  the  conception  of  the  crime.  The  matter 
more  properly  belongs  to  the  general  consideration  of 
punishment. 


i 


POLICE   OFFENCES.  257 

It  lias  been  intimated  above  that  criminal  law 
vacillates  between  two  dispositions  drawing  it  in  opposite 
directions — one,  that  of  bestowing  excessive  attention  on 
the  ethical  condition  of  the  possible  offender ;  the  other, 
that  of  exhibiting  comparative  indifference  to  this  con- 
dition, the  main  attention  being  concentrated  on  the 
natm-e  and  consequences  of  the  act.  It  is  in  its  latter 
aspect  that  criminal  law  most  widely  diverges,  both 
positively  and  negatively,  from  the  requirements  of 
current  moral  sentiment.  Criminal  law  erects  into 
public  offences  a  number  of  acts  to  which  the  moralist  is 
wholly  indifferent,  and  forbears  to  take  cognizance  of  a 
vast  number  of  not  dissimilar  acts  which  the  moralist 
regards  with  the  gravest  concern. 

This  arbitrary  creation  of  offences  is  most  conspicuous 
in  the  long  and  ever  increasing  list  of  what  are  sometimes 
called  "police  offences"  in  English  law, and  wliich  nearly 
correspond  with  the  contraventions  of  the  French 
criminal  code.  They  are  an  eminently  modern  inven- 
tion, and  indeed  flow,  partly,  from  complexities  of  social 
existence  which  have  no  parallel  in  former  times ;  and, 
partly,  from  theories  of  the  relation  of  the  individual 
citizen  to  the  whole  organism  of  which  he  is  a  member 
which  are  likewise,  in  their  popular  predominance  at 
least,  entirely  novel.  The  general  subject  of  the  province 
of  Government,  in  its  wider  aspects,  will  be  discussed 
in  a  later  chapter.  The  necessity  and  consequences  of 
multiplying  the  classes  of  petty  ofiences  having  no 
relation,  or  having  only  an  inverted  relation,  to  public 
morality,  may  appropriately  be  examined  here  by  way 
of  introduction  to  the  topic  of  the  administration  of 
criminal  law. 

It  is  of  great  importance  in  estimating  the  value  of  a 
system  of  criminal  law,  especially  in  reference  to  the 
smaller  and   more   aitificial   offences,  not  to   allow  the 


258  LEGAL  INFLUENCE  OF  REPRESENTATIVE  INSTITUTIONS. 

juflgment  to  be  blinded  by  the  modern  apology  which  is 
so  commonly  made  for  bad  legislation,  to  the  effect  that 
when  a  nation  has  the  advantage  of  representative  insti- 
tutions and  self-government,  all  jealousy  of  undue 
encroachment  on  public  liberty  by  the  law-making- 
authority  is  out  of  the  question.  No  one  is  henceforth 
held  to  be  entitled  to  utter  a  protest  against  any  whole 
class  of  laws,  though  he  may  suitably  enough  advocate 
the  repeal  of  some  laws  and  the  enactment  of  others  on 
the  ground  of  the  superior  utility  of  the  one  over  the 
other.  Representative  institutions  (it  is  said),  if  adequate 
to  their  purpose,  are  a  sufficient  guarantee  against  wide- 
spread abuses  of  the  legislative  power,  and  the  ultimate 
hold  which  every  citizen  has  upon  his  own  representative 
is  such  as  to  relieve  him  from  any  continuing  anxiety  as 
to  wholesale  aggressions  being  made,  in  the  name  of  law, 
upon  public  liberty. 

The  value,  however,  of  representative  institutions  as 
a  security  against  despotism  depends,  first,  upon  the 
amount  of  public  attention  which  is  directed  to  legisla- 
tion ;  secondly,  upon  the  kind  of  machinery  employed  in 
executing  the  criminal  law,  and  the  facility  of  redi-ess 
provided  in  case  of  excess  or  abuse  by  officers  of  the 
executive ;  thirdly,  upon  the  legislation,  at  all  its  stages, 
being  direct  and  not  delegated  to  subordinate  authorities. 
It  is  needless  to  add  that  the  truly  representative  com- 
position of  the  legislative  body, — as  being  an  exact  miiTor 
of  the  interests,  claims,  and  sentiments  of  aU  classes  and 
persons  in  the  community, — and  the  absence  of  all  laws 
which  on  the  face  of  them  sacrifice  the  liberty  of  many 
or  all  to  the  advantage,  or  luxurious  pursuits,  or  volup- 
tuous habits,  of  a  few,  are  essential  conditions  precedent  to 
the  existence  of  any  security  at  all  against  despotism 
introduced  under  the  covert  of  an  interminable  series  of 
police  ofi'ences. 


TESTS  OF  VALUE  OF  REPRESENTATIVE  INSTITUTIONS.     259 

In  modem  States,  and  notably  in  England,  wliieh 
enjoys  more  credit  than  any  other  for  the  success  of  its 
parliamentary  and  representative  institutions,  amidst  the 
mass  of  incessant  legislation,  the  topics  which  attract 
public  attention  are  necessarily  extremely  few,  and  are 
generally  least  of  all  such  as  most  nearly  touch  the  ultimate 
nerve  of  public  liberty.  These  last  topics  are  devoid  of 
any  party  interest,  and  are  either  handed  over  to  a  knot 
of  specialists  inflamed  with  the  glowing  report  of  a  one- 
sided committee  of  either  House,  or  are  hastily  dispatched, 
at  the  bidding  of  a  minister  of  the  Crown,  in  a  thin  and 
jaded  assembly,  and  at  an  hour  of  the  night  or  a  time  of 
the  year  when  even  the  show  of  an  animated  controversy 
can  safely  be  eluded. 

The  danger  is  the  greater  from  the  enormous  multi- 
tude of  projects  which  are  constantly  being  pressed  upon 
Parliament  by  small  professional  or  fanatical  coteries 
with  no  object  at  heart  but  that  of  securing  a  fair 
field  for  the  temporary  trial  of  their  own  nostrum. 
Resistance  is  all  the  more  difficult  from  the  prevalent 
fashion  in  political  argument  of  making  the  decision 
of  every  question  turn  solely  upon  the  calculable  con- 
sequences of  adopting  a  certain  course.  In  this  way 
the  advocate  for  a  new  repressive  measure  has  an  enor- 
mous advantage  over  any  opponent  who  might  venture 
to  withstand  him,  for  the  former  can  usually  calculate 
some  good  or  specious  consequences  to  arise  from  the 
measure  ;  while  the  latter,  shut  out  from  availing  himself 
of  the  best  and  most  exhaustive  catalogue  of  con- 
sequences implied  in  a  principle,  may  be  unable  to 
exhibit  in  a  tabulated  form  all  the  possible  evils  of  the 
proposed  law. 

The  second  test  of  the  value  of  representative  institu- 
tions, as  a  security  for  public  liberty,  so  far  as  this  is 
affected  by  the  criminal   law,  was  said  to  be  the  nature 


2G0  DANGERS   FROM   THE   POLICE. 

of  the  machinery  employed  in  executing  the  law  and  the 
facility  for  redress  provided  in  cases  of  abuse.  The 
execution  of  the  criminal  law  demands  the  co-operation 
of  a  vast  number  of  subordinate  officials,  necessarily  not 
very  far  removed  in  point  of  education,  culture,  or  moral 
sentiment  from  the  members  of  that  section  of  society 
amongst  which  breaches  of  law  may  be  commonly  looked 
for.  At  the  same  time,  these  officials  are,  from  the  nature 
of  their  duties,  in  the  closest  rapport  with  one  another, 
and  are  likely  to  be  over  stimulated  by  all  the  solici- 
tations of  professional  zeal.  The  result  must  be  that 
while  circumstances  are  such  that  the  temptations  to 
intimidation,  brutality,  and  corruption  are  likely  to 
abound,  those  exposed  to  the  temptations  are  most  un- 
favourably situated  for  resistance. 

It,  no  doubt,  is  true  that  by  a  careful  selection  of  the 
officials  and  by  efficient  management  the  possible  mischiefs 
may  be  largely  reduced.  But  it  is  to  be  noticed  that 
under  a  representative,  just  as  much  as,  or  even  more 
than,  under  any  other  system  of  government,  those  who 
govern  the  police  will  protect  those  persons  best  who 
are  capable  of  making  most  noise.  And  yet  these 
persons,  being  generally  rich  and  influential  by  com- 
parison, are  the  very  persons  who  can  the  best  protect 
themselves. 

It  is  to  be  noted  again  that  a  single  rash  or  unscrupu- 
lous police  official  can  every  day  inflict  an  amount  of 
damage  on  imiocent  persons  which  all  the  discretion  of 
the  rest  of  the  force  cannot  be  said  to  atone  for.  In 
the  case  of  some  offences  the  mere  preferring  of  a  ground- 
less charge,  even  if  it  be  instantly  disproved,  may  inflict 
an  irreparable  injury ;  and  there  are  some  charges  closely 
connected  with  the  general  moral  character  which  are 
easily  made,  and  yet  which  it  may  require  a  mass  of 
not  easily  procurable  evidence  to  disprove. 


SECURITIES   FOR  PUBLIC   LIBERTY.  2G1 

What  has  been  hitherto  said  applies  to  the  police 
under  all  possible  systems  of  criminal  law,  and,  there- 
fore, much  of  the  evil  and  danger  is  inevitable.  All  that 
can  be  done  is  to  endeavour  to  limit  the  mischief,  and  to 
resort  to  real  securities,  and  not  to  the  fondly  fancied 
immunity  supposed  to  be  provided  by  representative 
institutions. 

The  real  securities  that  may  be  resorted  to  are  (1)  the- 
creation  of  no  crimes  in  which  the  criminal  act  is  not 
capable  of  being  described  with  the  highest  amount  of 
deliniteness ;  (2)  the  refusal  to  any  class  of  police  officials, 
however  presumably  respectable,  of  any  general  control, 
having  relation  to  moral  character,  of  any  order  of  persons, 
other  than  (perhaps)  convicted  criminals  still  undergoing 
a  reformatory  discipline ;  (3)  insistance  on  the  necessity 
of  ])rocuring  a  warrant  from  a  magistrate  for  the  commit- 
tal of  a  prisoner  in  all  cases  either  before  or  immediately 
after  his  apprehension ;  (4)  maintenance  of  the  principle 
that  no  prisoner  should  be  detained  longer  than  a  week 
in  custody,  whatever  the  ground  of  detention,  without  a 
public  or  (only  if  he  prefers  it,  a  private)  magisterial 
examination,  in  which  the  burden  of  proof  is  entirely 
cast  on  the  accuser,  who  must  give  his  evidence  on  oath 
or  in  such  other  form  as  makes  him  judicially  responsible, 
and  who  must  submit  himself  to  cross-examination  by 
the  accused  or  those  who  represent  him ;  (5)  ample  pro- 
vision for  rendering  the  police  legally  responsible  for 
malicious,  corrupt,  or  grossly  careless  prosecutions. 

The  above  are  cardinal  principles  of  public  liberty 
which  have  gradually,  after  long  struggles,  welded 
themselves  into  the  very  fabric  of  the  English  constitu- 
tion, and  which,  in  all  the  best-kno^vn  crimes,  are 
invariably  recognized.  There  are,  however,  offences 
recently  created,  in  an  evil  hour,  by  act  of  parliament, 
as  to  which  not   one  of   these  principles  is  recognized. 


262  SUBORDINATE   LEGISLATION. 

The  sufterers  are  poor,  helpless,  and  obscure.  The  end 
sought  carries  with  it  a  plausible  show  of  sanitary- 
precautions.  Selfish  and  indolent  men  and  women  call  it 
"freedom  when  themselves  are  free ;"  and  there  are  even 
honest  persons,  especially  some  of  the  most  loyal  and  pro- 
fessedly religious,  who  are  haunted  by  a  confused  and 
indolent  notion  that  whatever  a  "  representative  " 
.assembly  wills  is  right. 

It  was  said,  thirdly,  that  any  great  use  of  subordinate 
legislation,  even  in  a  representative  government,  is  likely 
to  lead  to  a  dangerous  abuse  of  the  criminal  law.  Such 
subordinate  legislation  is  a  necessary  consequence  of  what 
has  already  been  spoken  of  as  the  excessive  amount  of 
work  which  befalls  a  representative  assembly  in  the 
present  day.  For  instance,  the  English  parliament  is 
constantly  deputing  to  persons  or  bodies  of  persons,  in 
greater  or  less  dependence  on  itself,  the  task  of  creating  a 
vast  number  of  the  rules  of  law  which  practically  become 
portion  of  the  criminal  law  of  the  country. 

Such  persons  or  bodies  are  the  different  departments 
of  the  Privy  Council,  Municipal  Corporations,  the  Home 
Secretary,  and  the  head  of  the  Metropolitan  Police.  The 
rules  thus  made  are,  to  all  intents,  criminal  laws,  inasmuch 
as  the  persons  who  infringe  them  are  punished  in  a 
definite  way,  and  the  State  does  its  utmost  to  find  out 
who  they  are,  and  to  bring  them  to  justice.  But  the 
public  control  over  these  laws  is  extremely  infii-m  and 
irregularly  exercised,  owing  to  the  indirectness  and 
secrecy  with  which  they  are  made;  and,  unless  they 
accidentally  attach  themselves  to  some  question  of  current 
interest,  or  unless  newspapers,  in  the  dearth  of  more 
entertaining  matter,  bring  them  into  notice,  the  fact  of 
their  coming  into  existence  is  likely  to  escape  attention 
altogether. 

There  is  one  other  danger  to  public  liberty,  in  the 


EXTRADITION.  2G3 

eailier  stages  of  the  execution  of  the  crimmal  law,  which 
must  here  be  alluded  to  ;  that  is,  the  danger  encountered 
by  foreigners  or  even  others  of  being  delivered  up  to 
another  Government  on  the  ground  of  crimes  alleged  to 
have  been  committed  by  them  in  the  territory  of  that 
Government.  The  danger  is  twofold  ;  first,  that  a  foreign 
Government  may  demand  the  delivery  either  of  one  of  its 
own  citizens  or  of  some  else  on  the  ground  of  the  com- 
mission of  an  offence  which,  if  committed,  is  no  offence  at 
all  by  the  laws  of  the  country  in  whicJi  the  fugitive  is 
now  residing,  or  is  identical  only  in  name  with  some 
offence  recognized  as  such  in  that  country.  The  direct 
object  in  this  case  may  be  a  purely  political  one,  and  the 
allegation  of  crime  may  be  only  a  subterfuge.  Secondly, 
the  evidence  upon  which  an  accused  would  be  put  upon 
his  trial  may  be  very  different  in  the  two  countries. 

The  safest  precautions  to  take  are  those  now  univer- 
sally taken  by  England  in  all  her  Extradition  Treaties. 
By  a  recent  statute  the  offences  in  view  of  which  extra- 
dition treaties  may  be  made,  though  very  numerous,  are 
carefully  tabulated.  The  same  evidence  which  is  needed 
for  committal  in  cases  of  offences  alleged  to  have  been 
committed  here  is  needed  in  the  case  of  offences  alleged  to 
have  been  committed  elsewhere.  And  at  every  stage  of 
the  proceedings  opportunity  is  provided  for  the  magistrate, 
a  judge,  or  a  secretary  of  State,  to  release  the  accused  on 
the  ground  that  a  political  motive  is  at  the  root  of  the 
charge. 

The  three  points  to  which  attention  must  chiefly  be 
directed  both  in  estimating  and  guarding  the  securities 
for  personal  liberty,  as  respects  encroachments  by  the 
executive  in  any  particular  country,  are  apprehension, 
detention,  and  trial. 

No  persons  or  class  of  persons  must  be  under  the  cring- 


264  WARRANT  AND   BAIL. 

ing  fear  of  having  imputed  to  them  offences  of  which 
they  are  innocent,  and  of  being  taken  into  custody  in 
consequence  of  such  imputation.  They  must  not  be  liable 
to  be  detained  in  custody  without  so  much  as  a  pvhna, 
facie  case  being  made  out,  such  as,  in  the  opinion  of 
a  responsible  judicial  officer,  raises  a  presumption  of 
guilt.  They  must  not  be  liable  to  be  detained  for  an 
indefinite  time  without  having  the  question  of  their  guilt 
or  innocence  investigated  by  the  best  attainable  methods. 
When  the  fact  comes  to  be  inquired  into,  the  best  attain- 
able methods  of  eliciting  the  truth  must  be  used.  In 
default  of  any  one  of  these  securities  public  liberty  must 
be  said  to  be  proportionately  at  a  very  low  ebb. 

Assuming,  then,  that,  in  favour  of  public  liberty,  all 
crimes  have  been  accurately  defined  by  law,  and  that  the 
police  have  been  carefully  selected  and  properly  instructed ; 
that,  furthermore,  every  precaution  has  been  taken  to 
secure,  at  the  earliest  possible  moment,  the  co-operation 
of  a  judicial  authority  such  as  is  implied  in  the  need  of 
procuring  a  warrant  for  the  apprehension  of  an  accused 
person ;  and  that  the  accused  is  not  finally  committed 
for  trial  without  a  formal  preliminary  investigation 
before  a  competent  authority,  nor  without  full  oppor- 
tunity being  offered  to  the  accused  of  explaining  away 
suspicious  appearances ;  the  next  essential  conditions 
of  public  liberty  are  that  the  accused  be  not  needlessly 
kept  in  prison  if  his  appearance  at  his  final  trial  can 
be  ensured  in  some  other  way,  and  that  the  time  of 
•  his  trial  be  neither  too  long  distant,  nor  be  capable  of 
change  at  the  arbitrary  will  of  the  executive. 

These  two  last  conditions  are  ensured  in  England,  and 
in  those  countries  (including  all  the  American  States) 
which  have  borrowed  their  criminal  procedure  from 
England,  by  the  constitutional  principle  that  excessive 
«  bail "  shall  not  be  required,  and  by  the  Habeas  Corpus 
Act  and  the  later  amendments  of  it. 


THE  WEIT  OF  HABEAS  CORPUS.  265 

The  question  of  "  bail,"  or  security  for  appearance  at 
the  time  of  trial,  is  one  presenting  peculiar  difficulties, 
inasmuch  as  the  propriety  of  letting  an  accused  person 
out  on  bail,  and  the  quantity  of  bail  to  be  demanded, 
must  necessarily  depend  upon  a  variety  of  circumstances 
peculiar  to  each  particular  case.  Such  circumstances  are 
the  atrocity  of  the  offence  and  the  punishment  attached  to 
it ;  the  pecuniary  means  of  the  prisoner  and  of  the  persons 
whom  he  is  able  to  present  as  ready  to  become  securities 
for  him  ;  and  even  the  general  character  of  the  evidence 
as  akeady,  at  such  an  early  stage  of  the  proceedings, 
disclosed.  The  estimate  of  the  value  of  the  various  con- 
siderations thus  involved  must  be  a  purely  discretionary 
matter,  and,  in  many  cases,  no  two  magistrates  would 
come  to  exactly  the  same  decision.  Thus  it  is  impossible 
to  direct  magistrates  by  law  when  to  require  bail,  and 
how  much  to  require,  without  running  a  great  risk  of 
tliereby  frequently  defeating  the  ends  of  justice.  The 
discreet  selection  of  magistrates  and  the  publicity  of  the 
proceedings,  accompanied  by  insistence  upon  the  maxim 
that  "excessive  bail"  is  not  to  be  demanded,  are  the 
solitary  (though  by  no  means  valueless)  safeguards  of 
public  liberty  when  threatened  in  this  respect. 

The  English  Habeas  Corpus  Act,  introduced  and  carried 
with  the  utmost  difficulty  in  Charles  II.'s  time,  and 
having  for  its  object  the  providing  an  effectual  machinery 
for  obtaining  the  ancient  writ  of  "  Habeas  Corpus,"  is  far 
the  most  stringent  remedy  ever  devised  in  any  country 
against  illegal  detention  in  prison  and  capricious  post- 
ponement of  trial.  It  has  been  extended  so  as  to  apply 
to  all  persons  kept  in  forcible  restraint  or  captivity,  even 
where  the  officers  of  the  executive  are  not  the  responsible 
persons. 

The  effect  of  the  statute  and  of  its  more  recent 
amendments  is  to  enable    any    cme   detained  anywhere 


266  POLICY   OF   THE   HABEAS  CORPUS   ACT. 

against  his  will  to  have,  at  the  shortest  possible  notice, 
the  legality  of  his  detention  publicly  investigated  and 
adjudicated  upon;  and,  in  the  event  of  the  detention 
proving  illegal,  to  obtain  his  instant  release.  In  some 
cases  a  warrant  of  commitment  for  treason  or  felony,  or  a 
legal  conviction,  may  be  in  itself  a  sufficient  return  to  the 
w^it,  and  may  obviate  further  proceedings.  But  where 
such  exceptions  do  not  apply,  heavy  penalties  are 
threatened  against  the  judge  who  refuses  to  issue  the 
writ  and  against  inferior  officers  who  do  not  execute  it. 
Special  provisions  are  made  in  the  act  for  speedy  trial  of 
prisoners  at  a  deffiaitely  named  time. 

It  is  impossible  to  read  of  or  call  to  mind  the  long 
and  cruel  imprisonments  for  purely  political  purposes 
which,  within  very  recent  times,  were  so  common  in 
Rome  and  Naples,  without  insisting  that  the  only  effec- 
tual security  against  the  possible  occurrence  of  such 
abuses  in  any  State  is  the  enactment  and  loyal  support 
of  such  a  statute  as  this.  There  have  been  times  indeed 
in  which  the  English  legislature  has  taken  the  bold  step 
of  temporarily  suspending  the  Habeas  Corpus  Act,  both 
in  England  and  (more  recently)  in  Ireland.  But  to  give 
such  uncontrolled  power  to  the  executive  as  this  suspen- 
sion carries  with  it  implies  either  that  a  condition  of  civil 
war  (and  therefore  the  abrogation  for  the  time  of  all 
law)  is  very  nearly  reached,  or  else  that  there  is 
entertained  a  perilous  confidence  in  that  very  Executive 
authoi'ity,  the  folly  or  supineness  of  which  may,  probably 
enough,  have  occasioned  the  evils  which  invite  the  remedy. 

Assuming,  then,  that  the  prisoner  is  brought  to  trial  in 
due  course  of  law,  the  next  question  that  presents  itself 
is  as  to  the  mode  of  trial  which  is  conducive  in  the 
highest  degree  to  the  vindication  of  innocence  and  the 
exposure  of  guilt.      At  this  point  one  great  institution 


TRIAL   BY  JURY.  207 

which  has  prevailed  most  extensively  in  England,  thoiigh 
it  is  now  being  copied  by  many  of  the  European  States, 
that  of  trial  by  jury,  as  applied  in  criminal  procedure, 
claims  attention. 

The  institution  of  trial  by  jury  and  the  reason  of 
its  universal  popularity  would  seem  to  have  a  close 
connection  with  what  has  akeady  been  pointed  out 
as  the  moral  element  which  is  so  conspicuous  in  the 
analysis  of  the  most  common  legal  crimes.  The  estima- 
tion of  this  moral  element  is  somehow  felt  to  be  more 
satisfactory  entrusted  to  a  body  of  ordinary  persons 
without  any  predisposition  to  adopt  artificial  distinctions, 
and  without  any  technical  training,  than  to  a  judge  whose 
professional  habits  of  thought  might  induce  him  to  leave 
out  of  account  some  of  the  rougher  elements  of  moral 
judgment  which  are  the  basis  of  action  in  common  life. 
Furthermore,  there  is  no  doubt  a  scarcely  conscious  senti- 
ment that  the  solemn  act  of  awarding  punishment 
demands  the  acquiescence  of  a  representative  body  of  the 
people  as  a  whole ;  and  that  the  jury,  however  casually 
chosen,  forms  such  a  representative  body. 

These  explanations  of  the  popvilar  attachment  to  jury- 
trial  are  wholly  independent  of  the  more  obvious  reasons 
for  introducing  and  adhering  to  it  as  the  best  possible 
corrective  to  such  influences  as,  even  in  the  best  organized 
systems  of  administration,  the  executive  may  still  contrive 
to  exert  over  the  judicial  bench.  The  questions  as  to  the 
number  of  persons-  required  to  constitute  a  jury,  and  as 
to  the  number  of  the  jurymen  required  to  assent  to  a 
verdict,  are  questions  rather  of  calculable  convenience 
than  of  political  principle.  A  larger  number,  however, 
may  well  be  required  to  constitute  a  jury  for  trying  the 
heavier  crimes ;  and,  instead  of  requiring  unanimity,  the 
consent  of  some  large  number,  short  of  all,  would  seem 
rather  expedient  in  order  to  provide  against  the  occasional 
presence  of  excessive  prejudice,  ignorance,  or  irrationality. 


268  QUESTIONS  OF   LAW   AND  OF   FACT. 

The  fact  already  noticed  that  trial  by  jury  supplies  a 
popular  and  not  unsuitable  mode  of  estimating  the  moral 
element  that  enters  into  criminality  also  discloses  the 
source  of  a  serious  difficulty  which  attends  that  form  of 
trial.  In  any  case  that  presents  itself,  the  complete 
judicial  investigation  resolves  itself  into  two  parts  which 
are  always  quite  distinct  from  one  another,  though  they 
may  be  blended  in  procedui'e;  or,  from  its  comparatively 
insignificant  importance  in  any  given  case,  one  part  may 
occasionally  seem  lost  in  the  other. 

These  two  parts  are  the  inquiry  (1)  what  is  the  rule 
of  law  which  is  alleged  to  have  been  infringed,  and 
the  inquiry  (2)  whether  any  given  person  has  really 
infringed  it.  The  second  inquiry  may  present  itself  in 
three  different  forms,  according  as  the  fact  of  the  in- 
fringement is  doubtful,  the  identity  of  the  person 
accused  with  the  person  who  has  committed  the  crime 
is  doubtful,  or  both  the  one  and  the  other  are  doubt- 
ful The  simplest  cases,  for  instance,  are  where  there 
is  abundant  and  wholly  unchallenged  evidence  that 
(say)  a  murder  has  been  committed  by  some  one,  and  the 
only  question  is  w^hether  the  prisoner  at  the  bar  is  the 
person  who  has  committed  the  murder ;  or  w^here  there  is 
good  reason  for  doubt  w^hether  a  l:)low  w^as  struck  with 
intention  to  kill,  but  there  is  no  doubt  that  it  was  the 
prisoner  who  struck  the  blow. 

It  is  not,  however,  all  criminal  cases  in  wliich  the  line 
can  be  sharply  drawn  between  questions  of  fact  such  as 
these,  according  to  their  various  degrees  of  complexity, 
and  what  are  called  questions  of  law.  In  many  cases  the 
rule  of  law  and  the  state  of  the  facts  are  so  implicated 
one  wdth  the  other  that  it  is  very  hard,  if  not  impossible, 
to  relegate  one  part  of  the  inquiry  to  one  tribunal  and 
the  other  part  to  another. 

In  coimtries  where  trial  by  jury  prevails,  and  most 


PROVINCES  OF  JUDGE  AND  JURY.  269 

decisively  so  in  England,  it  is  customary  to  reserve  all 
questions  in  which  the  existence  or  interpretation  of  a 
rule  of  law  is  involved  to  a  skilled  and  professional  judge, 
and  to  leave  all  other  questions  to  the  jury.  But,  in 
some  cases,  the  previous  decision  as  to  what  is  matter  of 
law  and  what  matter  of  fact,  though  a  purely  logical 
rather  than  a  legal  question,  is  usually  left  to  the  judge ; 
and,  through  this  loophole,  a  dangerous  opportunity  has 
been  afforded  for  the  encroachment  of  judges  upon  the 
province  of  the  more  popularly  constituted  tribunal. 

It  is  true  the  line  between  the  two  classes  of  questions 
must,  in  each  case  of  difficulty,  be  drawn  by  some  one,  and 
the  judge,  in  all  cases  where  he  is  not  deflected  from  the 
right  path  by  what  Bentham  called  a  "  sinister  "  interest, 
is  more  likely  to  be  competent  to  give  a  correct  logical 
decision  than  a  casually  chosen  jury.  The  only  precau- 
tion in  favour  of  public  liberty  that  can  be  taken  is  to 
guard  by  statute  the  province  of  the  jury  in  all  those 
cases  in  which  at  once  questions  of  law  and  of  fact  are 
particularly  apt  to  be  intermingled,  and  in  which  the 
political  impartiality  of  judges,  as  a  class,  could  in  critical 
times  least  be  relied  upon. 

Mr.  Fox's  Libel  Act,  which  practically  entitled  juries 
to  determine  the  question  of  whether  an  alleged  libel  was 
a  libel  or  not,  and  freed  them  from  the  restraint,  imposed 
upon  them  by  high  judicial  authority,  of  being  compelled 
to  confine  themselves  to  the  question  of  publication, — the 
libellous  quality  of  the  writing  being  left  for  investigation 
by  the  judge, — affords  a  specimen  both  of  the  mode  in 
which  matters  of  law  and  of  fact  do  become  blended  in 
practice,  and  of  the  mode  in  which,  for  purposes  of 
political  security,  an  arbitrary  separation  between  them 
can  be  effected  by  statute. 

Not  indeed  that  this  or  any  other  statute  can  exempt 

juries  from  the  necessity   of  finding  their  verdicts   in 
13 


270  EXTENUATING  CIRCUMSTANCES. 

accordance  with  law,  and,  therefore,  of  deferrine:  to  the 
guidance  of  the  judge  as  to  what  the  state  of  the  law  is. 
Mr.  Fox's  Libel  Act  gives  juries  as  much  freedom  of  acquit- 
ting or  convicting  in  cases  of  Libel  as  juries  have  in  the 
case  of  other  crimes,  but  no  more.  Juries,  indeed,  are  not, 
by  the  law  of  England,  punishable  for  finding  a  perverse 
verdict,  if  it  be  not  a  corrujDt  one,  and  in  criminal  cases 
there  is  no  appeal  from  the  verdict  of  a  jury.  But  it  is 
none  the  less  a  strongly  recognized  moral  and  political 
duty  of  jurymen  which  is  enforced  by  every  sort  of 
sanction,  short  of  a  legal  one,  to  measure  the  guilt  (if 
any)  of  the  prisoner  by  the  legal  description  of  the 
offence,  and  not  to  strain  the  legal  description  of  the 
offence  so  as  to  adapt  it  to  the  moral  situation  or  deserts 
of  the  prisoner. 

There  is  always  a  perceptible  tendency,  in  the  case  of 
some  of  the  most  important  class  of  crimes,  to  inti'oduce, 
even  with  the  connivance  of  the  judge,  a  principle  of 
haphazard  justice  or  Lynch  law  which  is  only  a  rough 
alternative  for  anarchy.  In  the  case  of  seditious  or 
malicious  libels,  in  that  of  seditious  conspiracies,  and  in 
that  of  murder,  the  reluctance  of  juries  to  be  guided  by 
any  definite  legal  rule,  and  the  tendency  of  judges  to 
warp  the  existing  rules  so  as  to  cover  or  exclude  the  case 
before  them,  is  a  patent  and  ominous  fact. 

In  France  this  tendency  has  given  rise  to  the  intro- 
duction of  the  verdict  of  "  extenuating  circumstances ;" 
and  in  England  it  is  proposed  in  some  quarters  to 
leave  it  to  the  jury  to  determine  whether  an  offence 
which  is  murder  according  to  the  legal  description  shall 
be  classed  as  in  the  "  first "  or  in  the  "  second  degi'ee,"  the 
capital  penalty  being  assigned  to  the  former  class  alone. 
There  are,  no  doubt,  peculiar  difficulties  in  distinguishing 
the  province  of  the  judge  and  the  jury  in  the  case  of 
murder,  both   because  of  the  varieties  of  psychological 


THE  PREROGATIVE  OF  PARDON.         271 

eccentricity  which,  through  the  insufficiency  of  legal 
expression,  are  necessarily  comprehended  in  one  legal 
category,  and  because  the  penalty  usually  assigned  to 
murder  is  neither  susceptible  of  reparation,  graduation,  or 
recall  The  French  practice  and  the  suggested  English  one 
have  this  in  common  that  they  refer  the  question  of  the 
infliction  of  the  highest  punishment  to  the  casual  sympa- 
thies or  antipathies  of  a  particular  jury.  In  such  circum- 
stances moral  considerations  (including  all  the  false  moral 
notions  prevalent  in  a  partially  educated  and,  perhaps, 
highly  inflamed  section  of  the  community)  are  likely  to 
have  an  overwhelming  weight.  What  is  an  offence  in  one 
court  is  not  one  in  another;  and  what  is  punished  with 
death  to-day  is  held  to  be  an  act  attributable  to  the  most 
generous  and  worthy  motives  to-morrow. 

It  is  not  probable  that  any  solution  of  the  real 
difficulty  will  be  discovered  so  long  as  capital  punish- 
ment is  retained.  The  prerogative  of  pardon  reserved 
to  the  executive  is  one  familiar  and  largely  used  mode 
of  solution.  But,  to  the  extent  to  which  it  is  used,  it 
induces  insecurity  in  the  administration  of  law,  and 
counteracts  the  exemplary  effect  of  a  public  trial  and 
sentence.  Not  indeed  that,  in  view  of  the  rough  and 
imperfect  instrumentality  at  hand  for  discovering  the 
truth,  this  ultimate  preventive  of  cruel  injustice  can 
be  dispensed  with.  But  the  more  publicity  that  can  be 
given  to  the  proceedings  of  those  who  advise  the 
exercise  of  the  prerogative,  and  the  more  intelligible 
the  grounds  of  the  exercise,  the  less  will  be  the  amount 
of  anarchy  which  the  prerogative  itself  tends  to  in- 
troduce into  the  administration  of  criminal  law. 

In  the  whole  course  of  criminal  proceedings,  from  the 
apprehension  of  an  accused  person  to  the  moment  of  his 
conviction  or  acquittal,  there  are  two  celebrated  methods 


272        ENGLISH  AND  FOREIGN  METHODS. 

of  procedure  to  some  extent  opposed  to  one  anotlier,  and 
which  may  be  roughly  characterized  as  the  English  and 
the  Foreign  method.  The  two  theories  upon  which  the 
methods  severally  rest  are  closely  connected  with  opposed 
views  of  the  functions  of  Government  and  of  the  relation 
of  the  individual  citizen  to  the  State. 

The  whole  tendency  of  the  events  which  make  up 
English  history  has  been  to  develop  the  smaller  groups, 
such  as  those  of  the  family,  the  parish,  the  county,  and 
the  borough,  at  the  expense,  in  some  measure,  of  the 
centralized  force  of  the  greatest  group  of  all,  the  State. 
Now,  it  is  through  the  dignified  self-consciousness  and 
through  the  constant  exercise  of  his  faculties  which 
membership  of  a  confined  group  at  once  necessitates  and 
develops  that  the  individual  person  acquires  a  conscious- 
ness of  moral  claim  and  right  which  is  anterior  and 
superior  to  that  of  subordination  to  any  system  of  mere 
external  force. 

It  is  true  that  important  institutions  have  been 
constantly  developing  the  relation  of  the  smaller  groups 
to  the  great  one,  otherwise  the  State  could  never  have 
sui'vived.  Such  institutions  were  the  relics  (long  abiding) 
of  the  feudal  system,  the  growing  system  of  parliamentary 
representation,  the  circuits  of  the  judges  finally  organized 
by  Henry  II.,  the  central  courts  at  Westminster,  and  the 
personal  connection  of  the  Church  hierarchy  and  the 
aristocracy  with  the  court.  Parallels  to  these  two  sets  of 
opposed  influences,  dissolving  and  uniting,  could  no  doubt 
be  produced  from  the  histories  of  France,  Germany,  Italy, 
Spain. 

But  the  peculiarity  of  the  phenomenon,  as  exhibited 
in  England,  is  that  (owing,  among  other  causes,  to 
its  insular  position,  to  the  peculiar  circumstances  of  the 
Norman  conquest,  and  to  the  course  taken  by  the  Refonn- 
ation  in  this  country)  the  free  reciprocal  action  of  the  two 


ENGLISH   AND   FOREIGN   METHODS.  273 

sets  of  rival  influences,  centripetal  and  centrifugal,  has 
proceeded  with  unbroken  regularity  for  more  than  eight 
hundred  years.  The  inheritance  of  this  advantageous 
position  (for  such  it  must  be  named)  has  been  reaped  by 
the  United  States. 

The  consequence  of  this  course  which  the  development 
of  English  life  has  taken  is  that  it  has  become  a  rooted 
constitutional  principle  that  the  pursuit  of  the  guilty 
must  be  conducted,  from  first  to  last,  with  the  utmost 
caution  not  to  accuse  or  to  implicate  the  innocent.  It  has 
been  felt  in  England  that  criminal  law  and  its  administra- 
tion are  everywhere  the  natural  avenues  through  which 
the  es:ecutive  encroaches  on  personal  liberty.  At  some 
stages  in  the  progress  of  the  nation,  the  State  trials 
afforded  scandalous  instances  of  this  fact.  But  the 
national  institutions  and  the  fixed  sentiment  of  liberty  in 
this  country  were  too  strong  for  the  example  to  spread  or 
to  last.  In  better  times,  the  notion  of  individual  claims 
to  immunity  from  unfounded  charges  recovered  itself, 
and  became  more  and  more  connected  with  the  demand 
that  accused  persons  should  be  treated  with  the  utmost 
indulgence  and  even  tenderness  up  to  the  time  of  their 
conviction. 

It  was  not,  indeed,  till  very  recent  times  that  pri- 
soners were  allowed  the  help  of  counsel,  or  that  the 
rules  of  evidence  were  construed  as  strictly  against  them 
as  for  them ;  but  the  origin  of  this  difference  no  doubt 
lay  in  a  belief  that  it  was  for  the  prosecutor  to  make 
out  every  part  of  his  case  so  conclusively  as  to  admit  of 
no  sort  of  conceivable  defence. 

Nor  did  this  defence  of  the  innocent  spring  from  any 
softness  in  the  English  character  or  disposition  to  be  lenient 
to  criminals ;  on  the  contrary,  the  English  have  been  ex- 
ceptionally harsh,  and  almost  savage,  in  awarding  punish- 
ment to  convicted  criminals.      In  speaking  of  a  severe 


27-i  EVIDENCE  OF  THE  ACCUSED. 

statute  passed  in  Henry  VIII.'s  reign,  by  which  death 
was  awarded  as  a  punishment  for  persistent  vagabondage 
Mr.  Froude  (vol.  i.  p.  86)  says — "  In  point  of  justice  as  well 
"as  of  prudence,  it  harmonized  with  the  iron  temper  of 
*'  the  age,  and  it  answered  well  for  the  government  of  a 
"  fierce  and  powerful  people,  in  whose  hearts  lay  an  intense 
"  hatred  of  rascality,  and  among  whom  no  one  need  have 
"  lapsed  into  evil  courses  except  by  deliberate  preference 
"  for  them.  The  moral  substance  of  the  English  must  have 
"  been  strong  indeed  when  it  admitted  of  such  stringent 
"  treatment ;  but,  on  the  whole,  they  were  ruled  as  they 
"  preferred  to  be  ruled ;  and  if  wisdom  may  be  tested  by 
"  success,  the  manner  in  which  they  passed  the  great  crisis 
"of  the  Reformation  is  the  best  justification  of  their 
"  prince." 

It  is  not  saying  too  much  with  respect  to  what  is 
characteristically  the  foreign  method  of  criminal  proce- 
dure to  allege  that,  in  the  administration  of  criminal  law, 
considerations  of  public  liberty  are  wholly  neglected.  It 
is  of  course  essential  to  the  well-being  of  a  State  that 
most  criminals  should  be  detected  and  punished ;  but 
this  must  be  done  so  as  to  be  as  much  as  possible  con- 
sistent with  attaining  other  equally  important  ends,  one 
of  which  is  the  maintenance  of  personal  liberty. 

It  may  be  that  the  English  method,  especially  in  the 
actual  conduct  of  a  trial,  by  not  admitting  the  evidence  of  a 
prisoner,  errs  too  much  in  one  direction — indeed,  so  much  as 
often  to  defeat  the  obj  ect  intended.  For  an  innocent  person 
may  only  be  able  to  establish  his  innocence  by  giving  a 
connected  account  of  a  series  of  transactions  which,  taken 
by  themselves,  and  apart  from  such  explanatory  evidence, 
are  wholly  adverse  to  him.  It  might  be  better  at  the 
least  to  allow  a  prisoner  to  be  examined  by  the  judge,  the 
English  rules  of  evidence  which  confine  the  whole  inquiry 
to  matters  immediately  comiected  with  the  actual  crime 


CRIMINAL  CONFESSIONS.  275 

being  quite  sufficient  protection  to  the  innocent  against 
inquisitorial  and  irrelevant  questions. 

But  the  Continental  method,  of  allowing  unlimited 
license  to  the  judge  to  parley  throughout  the  trial  with 
the  prisoner,  must  be  considered  in  connection  with  the 
other  and  preliminary  parts  of  the  proceedings.  After 
an  infinity  of  hypotheses,  in  the  course  of  provisionally 
supporting  each  of  which  any  number  of  innocent 
persons  may  have  been  imprisoned  and  privately  ex- 
amined, the  police,  with  the  help  of  the  public  prose- 
cutor, frame  a  document  the  general  upshot  of  which 
is  to  identify  the  accused  with  the  person  who  com- 
mitted the  crime.  The  proof  of  this  identification 
may  depend  upon  an  indefinite  number  of  minute 
circumstances  connected  with  the  biography  of  the 
prisoner,  and  with  his  moral,  social,  and  political  pro- 
clivities from  his  youth  up.  In  itself,  so  long  a  chain  of 
circumstantial  evidence  may  be  of  the  highest  value ;  but 
the  evil  is  that  it  is  this  document  which  furnislies  the 
groundwork  of  the  judge's  examination  of  the  accused. 

Such  a  course  is  obviously  putting  an  innocent  person 
at  the  grossest  disadvantage.  The  very  completeness  and 
nicety  of  the  theory  is  already  a  presumption  against  the 
prisoner;  while  his  memory  and  habits  of  observation 
and  introspection  may  wholly  fail  him  in  the  attempt  to 
explain  the  acts,  sentiments,  and  motives  of  the  past.  No 
doubt  such  a  system  generally  convicts  the  guilty,  but, 
even  where  it  does  not  also  convict  the  innocent^  it  is  an 
outrageous  cruelty  to  practise  upon  them. 

The  general  topic  of  evidence  will  be  more  conveniently 
treated  in  the  chapter  on  the  law  of  civil  procedure, 
though  there  is  one  species  of  evidence  which,  consider- 
ing its  bearing  on  public  liberty,  properly  belongs  to  this 
place, — that  is,  the  evidence  procurable  from  the  alleged 


27G  ABUSE   OF  CRIMINAL  CONFESSIONS. 

admission  or  so-called  "confessions"  of  the  accused.  It 
is  obvious  that  ■  the  admissions  of  an  accused  person, 
whether  obtained  before  his  apprehension  or  after  it,  may 
•supply  the  best  possible  evidence  concerning  the  fact  in 
dispute.  In  some  cases,  it  may  be  the  only  evidence  pro- 
curable ;  and,  in  other  cases,  it  may  be  accompanied  by 
such  strong  confirmatory  evidence  from  other  quarters  as 
to  form  an  important  link  in  a  chain  of  criminating  or 
exculpating  proofs.  This  sort  of  evidence,  however, 
when  obtained  out  of  court  and  not  under  the  eye  of  the 
judge  and  the  public,  is  open  to  two  serious  objections. 

In  the  first  place, — owing  to  the  idiosyncrasy  of  par- 
ticidar  persons,  to  the  strangely  mixed  motives  which  are 
known  to  induce  persons  to  confess  crimes  they  have  never 
committed,  and  to  the  obstacles  which  naturally  lie  in  the 
way  of  obtaining  an  accurate  report  of  what  the  alleged 
confession  really  amounts  to, — alleged  confessions  are  not 
only  unreliable  in  general,  but  it  is  extremely  difiicult, 
and  often  impossible,  to  test  the  degree  of  reliability  in  any 
particular  case. 

But,  in  the  second  place,  it  is  in  the  highest  degree 
impolitic  and  opposed  to  public  liberty  to  encourage  a 
habit  of  making  confessions,  and  stiU  more,  one  of 
extorting  or  even  of  inviting  them.  From  the  ignorance 
of  the  law  which  generally  prevails  among  those  who  are 
most  frequently  tempted  to  break  it,  and  from  incapacity 
to  apprehend  the  relevancy  of  questions  put  to  them,  or 
the  verbal  import  of  their  own  answers,  persons  whoUy 
innocent  are  frequently  in  danger  of  confessing  to  crimes 
they  have  never  committed,  and  they  who  have  com- 
mitted one  sort  of  crime  of  confessing  to  another. 

English  law,  indeed,  has  done  its  utmost  in  outward 
form  to  surround  prisoners  with  safeguards  against  the 
consequences  of  confessions  elicited  under  any  sort  of 
pressure  direct  or  indirect.     But  the  number  of  alleged 


DETECTIVE   POLICE  AND   INFOEMERS.  277 

voluntary  confessions  cited  in  courts  of  justice  every  day 
as  made  to  policemen  by  prisoners  after  their  apprehen- 
sion proves  the  impotency  of  these  safeguards.  The 
position  of  an  accused  person  is  of  itself,  apart  from  all 
extrinsic  influence,  wholly  unfavourable  to  freedom  of 
thought  and  act.  Stupor,  surprise,  sense  of  novelty  in 
the  situation,  and,  most  frequently  of  all,  hope  of  con- 
ciliating the  police  by  forbearing  to  give  further  trouble, 
all  operate  in  favour  of  producing  involuntary,  and  there- 
fore generally  worthless,  confessions. 

But  the  evil  of  encouraging  the  police  to  procure 
confessions  is  greater  even  than  that  involved  in  the  par- 
ticular injustice  which  the  admission  of  them  as  evidence 
generally  works.  It  has  been  seen  that  the  hardest  task 
a  State  has  to  engage  in  is  to  control  the  activity  of  the 
subordinate  oflBcers  of  the  executive  without  compro- 
mising public  order.  To  permit  these  officers  to  invite 
confessions  of  offences  is  to  accord  an  illimitable  and 
wholly  uncontrolled  extension  to  their  functions.  Instead 
of  being  the  trusted  and  respected  guardians  of  the  public 
peace,  and  the  allies  of  all  in  their  war  against  the 
unhappy  propensities  of  a  few,  they  easily  become  trans- 
formed into  the  common  enemies  of  all,  suspected,  hated, 
and  feared  by  all. 

It  is  needless  to  say  that  this  consequence  is  most  in- 
exorably certain  where  a  system  of  detective  police 
undistinguished  by  a  uniform,  is  used.  The  immediate 
result  is  that,  instead  of  actively'  seeking  for  extrinsic 
evidence,  the  whole  energy  of  the  police  is  diverted  into 
adroitly  bringing  pressure  to  bear  upon  the  minds  of 
those  they  suspect.  The  next  result  is  a  silent  and 
widespread  terrorism,  and  the  bii'th  of  a  corrupt  brood 
of  spies  and  informers.  The  final  result  is  the  immola- 
tion of  public  liberty,  while  its  names  and  forms  may 
still  be  scrupulously  cherished. 


278  THEORY   OF   PUNISHMENT. 

Such  a  fate  overtook  Rome  in  its  most  brilliant 
days;  and  in  the  modern  multiplication  of  laws,  and 
the  reckless  extension  of  the  province  of  government, 
coupled  with  the  crowd  of  competing  sanitary,  economic, 
and  social  theories,  loudly  crying  out  for  legislative 
recognition,  may  be  seen  signs  of  a  like  calamity  befalling 
the  most  outwardly  civilized  states  of  Europe.  The  only 
bulwarks  against  the  danger  are  to  be  sought  in  a  deep 
and  widely  diffused  conviction  of  the  meaning  and  value 
of  personal  liberty  and  in  a  firm  grasp  of  the  immutable 
principles  of  national  and  individual  morality. 

Next  in  importance  to  the  measure  of  the  security 
afforded  by  the  criminal  law  for  public  liberty  in  the 
mode  of  apprehending  and  trying  alleged  offenders,  are 
the  soi-ts  of  punisJmients  to  which  convicted  persons  are 
subject,  and  the  principles  upon  which  the  degree  of 
punishment  to  be  assigned  in  particular  cases  is  estimated. 
The  consiileration  of  punishment  is  a  very  perplexed  one, 
as  it  is  difficult  to  confine  it  within  the  limits  of  any  one 
branch  of  enquiry,  and,  therefore,  it  is  equally  claimed  or 
appropriated  by  very  opposite  classes  of  reasoners  who, 
through  their  combined  efibrts,  somehow  rather  hamper 
than  forward  one  another's  work.  It  is  quite  possible, 
indeed,  to  isolate  the  question  of  criminal  punishment  in 
a  variety  of  ways,  though,  by  so  doing,  very  erroneous 
and  mischievous  conclusions  would  be  come  to.  The 
difliculty  rather  is  to  look  at  all  sides  of  the  subject  at 
once,  and  to  attribute  its  true  relative  value,  and  no  more, 
to  each  separate  class  of  considerations. 

The  first  question  to  be  answered  is,  as  to  the  superior 
value  of  fixing  by  legislation  an  immutable  scale  of 
punishments,  no  discretion  whatever  being  left  to  the 
judge  as  to  the  degree  of  punishment  to  be  applied  in 
the  case  of  a  prisoner  convicted  of  a  given  crime ;  or  of 


PUNISHMENT  AND   REFORMATION.  279 

leaving  to  the  judge  either  some,  or  an  indefinite  amount 
of,  discretion  in  applying  the  punishment.  This  question 
cannot  be  answered  without  reviewing  the  several  ends 
of  punishments  under  the  criminal  law,  an  enquiry  which 
will  serve  also  to  answer  the  next  question  to  be  proposed, 
■ — that  of  the  most  expedient  forms  of  punishment  for  the 
different  classes  of  crimes. 

The  commonly  alleged  ends  of  criminal  punishment 
are,  first  and  foremost,  the  prevention  of  a  recurrence  of 
the  crime,  either  through  the  act  of  the  convicted  person 
himself,  or  through  that  of  others ;  secondly,  the  moral 
advantage,  generally,  of  the  convicted  person.  This 
second  end  hardly  comes  within  the  purport  of  law,  and 
much  confusion  of  thought  has  flowed  from  fixing  undue 
attention  upon  it  and  forgetting  its  relation  to  the 
former. 

The  true  position  of  this  alleged  end  is  that  of 
marking  a  limit  to  the  modes  of  pursuing  the  former  and 
only  essential  end.  In  marking  such  a  limit  it  need 
not  be  said  that  the  moral  claims  of  the  convicted  person 
to  being  put  in  the  best  possible  condition  for  retrieving 
his  character  are  about  as  strong  as  can  well  be  imagined. 
It  is  the  gTeat  moral  discovery  of  the  present  age  that  very 
much  can  be  done  in  this  direction  without  any  sacri- 
fice of  objects  more  important  than  itself  Economical 
considerations,  calling  attention  to  the  loss  entailed  on 
the  community  through  the  perversely  conducted  and 
wasted  life  of  a  single  citizen,  tend  in  the  same  direction. 
Sympathy  and  humanity,  again,  as  they  become  richly 
developed  in  the  community  at  large,  cannot  tolerate  the 
infliction  of  any  further  amount  of  punishment  than  the 
public  good  or  safety  imperatively  demands,  while  the 
same  sentiments  resent  the  infliction  of  certain  kinds  of 
punishment  as  an  indignity  to  human  nature,  not  to  be 
submitted  to  as  the  price  of  any  public  good  whatsoever. 


280  PUNESHMENT  AND  REFORMATION. 

In  the  invention  and  measurement  of  criminal  punish- 
ments there  is,  undoubtedly,  the  widest  possible  field  for 
the  operation  of  instincts  of  benevolence  and  moral  jus- 
tice. The  inducement  to  indulge  these  instincts  freely  is 
all  the  more  potent  when  it  is  remembered  to  what 
extent  society  in  general,  by  its  selfish  arrangements,  its 
laxity  in  moral  judgments,  its  encoiu'agement  of  needless 
inequalities,  and  its  permission  of  ignorance,  is  largely 
responsible  for  every  crime  that  is  committed.  It  is 
bound  to  make  what  reparation  it  can  to  the  offender 
whose  crime  its  own  sins  have  nursed  into  life.  Thus  it 
is  impossible  to  intensify  the  argument  too  strongly  to 
the  eftect  that  the  main  end  of  criminal  pimishment  must 
be  canied  out  as  far  as  possible  in  harmony  with  the 
secondary  end  of  achieving  the  moral  reformation  of  the 
particular  offender. 

But  in  some  quarters  there  is  a  tendency  to  seek 
for  no  other  end  in  devising  and  applying  criminal 
punishments  than  that  of  reformation ;  or  else,  through 
pre-occupation  in  pursuit  of  this  last  end,  to  neglect  to 
take  the  steps  necessary  for  securing  the  higher  end  of 
enforcing  universal  obedience  to  the  criminal  law. 

If  a  criminal  law  is  wisely  constructed,  and  based 
upon  the  needs  of  the  whole  commiuiity,  and  not  upon  the 
arbitrary  and  tyrannical  prejudices  of  a  class,  general 
obedience  to  that  law  is  the  first  and  highest  requisite 
of  political  existence.  Want  of  general  obedience  implies 
approaching  social  dissolution.  Universal  disobedience 
implies  that  the  State  no  longer  exists.  Thus  the  question 
of  the  reformation  of  any  number  of  individual  offenders 
is  out  of  all  proportion  insignificant  as  compared  with 
that  of  securing  general  obedience  to  law.  The  two 
cannot  even  be  put  in  scales  over  against  one  another. 
They  are  incommensurable  quantities. 

Assuming,  then,  that  the  first  object  to  be  kept  in 


MODES   IN   WHICH   PUNISHMENTS   OPERATE.  281 

view  is  that  of  securing  general  obedience  to  law,  it 
remains  to  be  seen  how  punishments  can  best  be  chosen 
and  measured  in  order  to  achieve  this  end,  it  not  being 
forgotten  that,  in  selecting  between  two  kinds  or  degrees 
of  punishment,  equally  efficacious  otherwise,  that  is  to  be 
preferred  which  is  least  incompatible  with  the  moral 
reformation  of  the  culprit. 

Criminal  punishments  may  operate  in  the  prevention 
of  crimes  in  three  distinct  way.s.  Some  punishments,  as 
those  of  death,  transportation,  and  imprisonment,  by 
removing  the  offender  temporarily  or  permanently  from 
the  midst  of  the  society,  to  that  extent  forcibly  prevent 
him  from  repeating  his  crime.  Tlie  mutilation  of  those 
members  which  have  been  the  instrument  of  committing 
crimes  had  a  like  effect,  when  such  punishments  were  in 
use. 

All  punishments,  again,  quite  apart  from  their 
actual  quality  or  degTee  of  severity,  serve  to  mark  in  a 
distinct  and  public  way  the  triumph  of  society  over  the 
devices  or  mischievous  violence  of  a  recalcitrant  citizen. 
The  actual  infliction  of  the  punishment  re-establishes, 
as  it  were,  the  violated  order.  It  reasserts  in  emphatic 
terms  outraged  authority.  It  proves  decisively  the  weak- 
ness and  puerility  of  guilt  when  brought  into  conflict 
with  the  mighty  force,  moral  and  physical,  of  the  whole 
State..  It  is  to  be  noticed  that  the  success  of  this  sort  of 
operation  must  wholly  depend  upon  the  certainty  of  con- 
victions and  the  rarity  of  misadventures  in  the  adminis- 
tration of  justice. 

It  happens,  however,  fortunately  for  mankind,  that 
the  lighter  the  punishment  the  more  infallible  is  the 
process  of  convicting  the  guilty  and  of  liberating  the 
innocent.  ^Mien  the  punishments  are  severe,  or  any 
attempt  is  made  to  assimilate,  by  a  spurious  and  most 
misleading  form  of  calculation,  the  suffering  they  cause 


282  VINDICTIVE   PUNISHMENTS. 

■with  the  hypothetical  suffering  resulting  from  the  crime, 
convictions  become  proportionately  irregular  and  un- 
certain. The  attention  of  the  tribunal  (especially  when 
it  is  a  popular  one)  is  unconsciously  diverted  from 
the  consideration  of  evidence — a  subject  quite  enough  to 
occupy  the  whole  mind — and  is  directed  to  the  penal 
consequences  of  an  adverse  decision.  Thus,  in  cases  where 
the  punishment  is  either  very  severe,  or,  under  the  circum- 
stances of  the  particular  case,  wholly  disproportioned  to 
the  moral  guilt,  and  yet  is  inflexibly  fixed,  every  shred  of 
favourable  testimony  is  laid  hold  of  with  the  utmost 
possible  zeal,  and  the  prisoner  is  acquitted,  not  because  it 
is  believed  he  is  innocent,  but  because  it  is  too  painful  to 
encounter  in  thought  the  possibility  of  his  punishment. 
Such  an  extreme  crisis  is  not  of  course  of  very  frequent 
occurrence ;  but  so  far  as  punishments  are  vindictive  in 
their  aspect,  liarsh  in  their  quality,  and  admitting  of  no 
discretionary  graduation  by  the  judge,  to  that  extent 
verdicts  are  likely  to  be  determined  at  least  as  much  by 
the  promptings  of  sympathy  as  by  the  weight  of  evidence. 

It  may  be  looked  for,  at  no  distant  day,  that  the  whole 
vindictive  theory  of  punishments,  and  the  use  of  harsh 
and  cruel  punishments,  shall  have  wholly  vanished  from 
the  criminal  code  of  every  civilized  State.  It  is  a  change 
which,  no  doubt,  cannot  be  introduced  all  at  once,  but 
must  be  gradually  approximated  to.  The  increasingly 
numerous  and  humane  advocates  of  reformatory  move- 
ments will  contribute  much  in  this  direction,  though  too 
often  with  an  imperfect  apprehension  of  all  the  ends  in 
view. 

The  third  mode  in  which  criminal  punishments 
operate  is  the  coarsest  and  least  worthy  one,  as  appeal- 
ing to  the  lowest  and  most  cowardly  feelings  of  man's 
nature.  It  is  that  mode,  however,  which  seems  to  many 
superficial  legislators  the  only  one  worthy  to  be  taken 


MODES   IN   WHICH   PUNISHMENTS   OPERATE.  283 

into  account.  The  mode  is  that  of  inflicting  the  exact 
amount  of  physical  suffering  which  it  is  believed  is 
sufficient  to  counterpoise  the  pleasure  sought  by  the 
commission  of  the  crime.  Any  such  affected  balance  of 
a  good  and  an  evil  must  be  extremely  delusive;  first, 
because  any  one  contemplating  the  commission  of  a  crime 
unconsciously  takes  into  account,  not  only  the  actual 
punishment,  but  also  the  certainty  of  the  punishment 
following  the  crime,  and  the  date  at  which,  if  at  all,  it 
will  follow;  secondly,  the  moment  of  temptation  to 
commit  a  crime  is  seldom,  and  least  of  all  in  the  case 
of  the  worst  educated  people,  the  moment  of  the  most 
discreet  calculation. 

It  is  true  that  fixed  associations  may  gradually  be 
formed  in  the  minds  of  a  whole  population,  founded  on 
the  connection  of  punishments  and  crimes ;  but  this  will 
be  only  a  general  association,  and  in  very  few  cases  will 
it  be  the  association  of  a  given  crime  with  its  correspond- 
ing punishment.  Unless  a  person  has  himself  actually 
committed  the  crime  and  then  undergone  the  punish- 
ment, there  is  no  force  sufficiently  strong  to  drive  home 
such  a  purely  arbitrary  association.  No  doubt,  in 
countries  in  which  the  crime  of  murder  is  punished  with 
death,  a  popular  association  between  the  crime  and  the 
punishment  is  common  enough.  But  there  is  some  good 
reason  to  believe  that  this  association  is  rarely  of  service 
in  saving  a  person  contemplating  murder  from  the  crime, 
inasmuch  as  ordinary  persons  (especially  when  in  great 
turmoil  of  mind)  seldom  generalize  sufficiently  to  present 
clearly  before  their  own  imaginations  the  exact  legal 
name  and  description  of  the  wrongful  act  they  are  about 
to  perpetrate. 

All  these  arguments  tend  in  the  same  direction,  that 
is,  to  establish  the  principles  (1)  that  the  most  expedient 
quality  and  scale  of  punishments  must  be  discovered  by 


284  VARIABILITY   IN    PUNISHMENTS. 

experience  and  not  anticipated  by  deference  to  ancient 
customs,  to  prejudice,  to  vindictiveness,  or  to  fallacious 
resemblances  between  the  crime  and  the  punishment ;  (2) 
that  the  least  severe  punishments  are  likely  to  be  the 
most  certain,  and  the  most  certain  punishments  the 
most  effectual ;  (3)  that  the  greater  the  latitude  of 
discretion  left  to  the  judge  the  less  pernicious  are  severe 
punishments;  but  that  under  a  system  of  very  light 
punishments,  the  reasons  for  admitting  such  latitude  are 
proportionately  less  cogent. 

The  two  propositions  that  the  quality  and  degree  of 
punishment  which  ought  to  be  inflicted  can  only  be 
determined  by  experience  ;  and  that,  if  punishments  be 
not  very  light,  the  purpose  of  punishment  can  only  be 
carried  into  effect  by  leaving  to  the  judge  a  considerable 
amount  of  discretionary  power  in  meting  it  out,  involve 
certain  logical  consequences  which  are  of  the  highest 
degree  of  importance,  and  yet  the  force  of  which  is  often 
very  imperfectly  apprehended. 

If  the  nature  of  punishment  is  to  be  fixed,  not  in 
accordance  with  the  dictates  of  inveterate  custom,  or  with 
some  antecedent  conception  of  the  appositeness  of  the 
punishment  to  the  internal  characteristics  of  the  crime, 
but  in  view  of  its  probable  efficaciousness  as  tested  by 
actual  experience,  then  must  punishments  be  constantly 
varying  with  the  vaiying  cu'cumstances  of  advancing 
civilization.  No  punishment  but  one  involving  super- 
fluous cruelty  can  be  regarded  as  permanently  excluded 
from  the  category  of  possible  punishments ;  nor  is  it 
possible  to  affirm  of  any  kind  of  punishment,  however 
long  disused,  that  it  may  not,  in  certain  conditions  of 
society,  have  to  be  recurred  to  again. 

Punishment  must  have  a  relation  not  only  to 
the  physical  apprehensions  and  moral  susceptibilities 
of  the  nation  taken  as  a  whole,  but  of  the  small  section 


■  RECURKENCE   TO   DISUSED   PUNISHMENTS.  285 

of  a  nation  in  the  midst  of  which  certain  classes  of 
crimes  happen  to  become  prevalent.  It  may  occur 
that,  owing  to  general  social  causes,  a  small  and  definite 
stratum  of  the  population  has,  in  one  or  more  particular 
respects,  become  shut  out  from  the  general  influences 
of  civilization  which  have  permeated  all  the  rest.  Some 
particular  crimes  of  the  most  odious  sort  may  linger  or 
revive  here  long  after  their  very  names  and  possibility 
have  been  all  but  forgotten  everywhere  else.  Such  an 
occasional  experience  is  familiar  in  all  highly  developed 
States,  and,  in  addition  to  other  more  hopeful  agencies, 
those  implied  in  the  proportionately  invigorated  activity 
of  the  criminal  law  must  not  be  neglected. 

The  sort  of  crimes  which  most  frequently  present 
themselves  in  this  spasmodic  form  are  setting  fire  to 
buildings  or  other  property,  violent  assaults  on  the 
j)erson,  and  brutal  offences  of  all  sorts  against  women 
and  children.  So  soon  as,  in  any  festering  corner  of  the 
communitj^,  the  habit  of  committing  such  offences  as 
these  becomes  anything  like  frequent,  the  first  object  of 
the  criminal  legislator  is  to  break  the  habit  at  once,  and 
absolutely.  For  this  purjjose  he  may  have  temporarily 
to  resoi-t  to  the  use  of  punishments  which  have  been 
long  wisely  discarded,  and  which,  if  further  extended 
or  even  prolonged  beyond  the  immediate  necessity,  would 
tend  to  national  demoralization  or  would  -go  far  to 
counteract  the  best  efforts  that  are  being  made  in  favour 
of  the  reformation  of  offenders. 

The  danger  of  adopting  such  punishments  even  pro- 
visionally is  that,  owing  to  the  indolence  of  legislators 
in  removing  bad  laws  compared  with  their  alacrity 
in  providing  the  first  remedy  that  comes  to  hand  to 
meet  a  pressing  emergency,  such  punishments  readily 
become  familiar  and  immovable  portions  of  the  legal 
system.     The  result  is  that,  so  often  as  a  real  necessity 


286  DISCRETIONARY   PUNISHMENTS. 

arises  for  exceptional  penal  legislation,  the  supporters 
and  opponents  of  stringent  modes  of  punishment 
become  at  once  distributed  into  sharply  divided  and 
hostile  camps.  The  one  party  call  for  a  permanent 
increase  in  severity  of  punishment.  The  others  deprecate 
any  change  whatever. 

The  only  solution  of  such  a  difficulty  is  to  be  sought 
for  in  so  wise  and  calm  an  appreciation,  on  both  sides,  of 
the  true  ends  of  punishment  as  may  lead  the  one  party 
patiently  to  acquiesce  in  the  adoption  of  the  only  im- 
mediately efficacious  remedy  which,  in  accordance  with 
the  best  attested  evidence,  the  circumstances  seem  to 
admit  of;  and  the  other  party  to  join  with  those  they 
have  been  wont  to  regard  as  their  adversaries,  in 
securing  an  instant  repeal  of  the  anomalous  laws  so  soon 
as  ever  the  emergency  which  called  for  them  can  fairly 
be  said  to  be  over. 

The  value  of  leaving  to  the  presiding  judge  a  large 
amount  of  discretion  in  the  assignment  of  punishment 
depends  upon  the  importance  of  two  distinct  con- 
siderations. One  is  that  of  putting  special  obstacles 
in  the  way  of  those  who,  by  repeated  convictions,  show 
themselves  to  be  peculiarly  exposed  to  temptations  in 
certain  definite  directions.  In  some  cases  the  legislature 
itself  assigns  an  aggravation  of  punishment  in  the  case 
of  repeated  crimes.  In  other  cases  (as  is  usual  in 
England)  the  legislature  simply  allows  to  the  judges 
a  wider  latitude  in  the  assignment  of  punishment  when 
the  prisoner  has,  by  previous  conviction,  displayed  either 
a  special  propensity  to  commit  certain  offences  or  a 
character  so  depraved  as  to  be  beyond  hope  of  being 
impressed  by  the  ordinary  penal  sanctions.  Similar 
principles  apply  to  conjoint  crimes  whether  of  the  same 
or  of  a  different  nature. 


EVIDENCE  OF  CHARACTER.  287 

The  other  consideration  which  enforces  the  general 
value  of  leaving  to  the  presiding  judge  a  large  amount 
of  discretionary  power  in  the  matter  of  punishment 
is  the  importance  of  graduating  the  punishment  in 
proportion  to  the  varied  shades  of  moral  guilt. 

It  is  true  that  this  can  only  be  a  subordinate  object, 
though  the  transparent  conformity  of  legal  to  moral 
judgments  cannot  but  conduce  largely  to  carrying  out  the 
primary  object  of  criminal  law,  that  of,  by  some  means  or 
other,  however  coarse  and  mechanical,  preventing  the 
commission  of  crime.  Nevertheless  it  is  of  great  import- 
ance to  render  the  administration  of  criminal  justice 
as  popular,  and  the  grounds  of  sentences  as  intelligible, 
as  possible;  and  this  can  only  be  effected. by  reproducing 
to  some  extent  within  the  walls  of  a  court  of  justice  the 
opinion  and  judgment  of  the  better  part  of  the  com- 
munity outside.  It  is  also  true,  as  has  just  been  shown 
above,  that  the  worse  men  are,  the  more  dangerous  they 
are,  and  therefore  a  rough  moral  analysis  of  the 
general  character  of  a  culprit,  over  and  above  reference 
to  previous  crimes,  can  hardly  be  declined  by  the  judge 
in  determining  the  punishment.  But  when  a  judge 
enters  upon  such  an  analysis,  however  meagre  the 
materials  to  his  hand,  he  instantly  passes  beyond  the 
limits  of  a  merely  legal  inquiry. 

Evidence  of  character  may  be  produced  either  in  an 
earlier  stage  of  the  proceedings  to  show  that  it  is  not 
probable  a  particular  person  committed  the  special  crime 
charged  ;  or  to  show  after  conviction,  that,  though  it  is 
true  he  did  commit  it,  yet  the  act  was  so  contrary  to 
what  might  have  been  expected  from  his  general  dis- 
position as  to  suggest  that  he  must  have  been  exposed 
to  peculiar  and  rare  temptations,  and  so  to  make  it  seem 
unlikely  that  either  he  or  another  man  like  him  would 
do  a  similar  act  on  another  occasion. 

Thus  the  judge   is   induced  to  pay  regard,  first,  to 


2SS  TREATMENT   OF  THE   INSANE. 

the  fact  of  the  legally  defined  crime  having  been  com- 
mitted by  the  person  convicted ;  then  to  the  surrounding 
circumstances  which  give  the  legal  crime  its  peculiar 
moral  complexion,  whatever  that  is ;  and  lastly,  to  the 
general  or  special  antecedents  of  the  prisoner.  Out  of 
all  these  elements  he  forms  a  rough  moral  judgment; 
and  having  regard  first  of  all  to  the  purely  practical  or 
political  aims  previously  adverted  to,  he  proceeds  further 
to  qualify  the  penalty  in  accordance  with  the  degree  of 
moral  heinousness  in  the  criminal  act.  The  publicity  of 
the  moral  teaching  thus  conveyed  is  of  great  value  if  only 
the  moral  criterion  applied  is  a  sound  one,  and  so  long 
as  the  main  purpose  of  the  criminal  law,  that  of  the 
prevention  of  crimes,  is  not  sacrificed  or  imperilled. 

The  treatment  of  lunatics  and  of  youthful  criminals 
forms  one  of  the  most  anxious  parts  of  penal  legislation, 
and  the  methods  most  in  use  in  modern  times  are  far 
from  being  satisfactory  or  even  capable  of  scientific 
justification.  The  condition  of  insanity  is  not  of  that 
sharply  defined  character  which  English  criminal  law 
(for  instance)  supposes.  Insanity  is  notoriously  allowed 
to  admit  of  an  indefinite  number  of  kinds  and  grades, 
and  widely  to  difi'er  in  the  case  of  different  patients. 

As  has  been  already  seen,  the  well-known  tests' 
supplied  by  the  English  criminal  law  by  no  means 
exhaust  the  possible  conditions  of  lunacy,  and  it  must 
be  impossible  to  frame  a  definition  which  can  quite  keep 
pace  with  the  researches  of  science  or  with  the  strange 
varieties  of  abnormal  action, — ever  afresh  presenting 
themselves, — of  mind  and  body.  The  only  prudent 
course  then,  is,  in  each  particular  case  in  which  the 
defence  of  insanity  is  set  up,  to  investigate  by  the  best 
attainable  medical  tests  whether,  at  the  time  of  com- 
mitting the  alleo-ed  crime,  the  muscles  and  the  will 
were  in  the  degi'ee  of  health  needed  for  voluntary  action, 


PUNISHMENTS   FOR   THE   INSANE.  289 

and  whether  the  faculty  of  forming  an  intention  existed 
in  that  degree  of  health  necessary  to  form  the  particular 
sort  of  intention  which  is  an  essential  constituent  of  the 
crime  charged. 

In  estimating  intention  in  such  a  case,  it  must  be 
presumed  or  ascertained  that  the  accused  has  his- 
general  faculties  in  such  a  healthful  condition  as  to  place 
him  in  the  same  situation  as  is  occupied  by  any  average 
person  in  the  community  with  respect  to  the  question 
whether  the  act  is,  or  might  be,  forbidden  by  law.  Thus 
there  are  general  conditions  of  health  to  be  inquired 
into,  and  also  special  conditions.  It  may  indeed  result 
that  the  prisoner  was  partially  responsible,  but  not 
wholly  so.  He  was  quite  sane  enough  to  commit  a 
crime,  but  not  the  actual  or  the  whole  crime  charged. 

This  suggests  the  expediency  of  having  a  range  of 
punishments  specially  set  apart  for  the  insane.  It  is 
certainly  cruel  and  illogical  to  send  a  number  of  legally 
innocent  persons  en  masse  to  a  criminal  lunatic  asylum, 
wholly  irrespective  of  the  shades  of  their  moral  guilt, 
and  solely  on  the  ground  of  the  accidental  legal  aspects 
of  the  unhappy  calamity  to  which  their  disease  has 
given  rise. 

The  value  of  a  reformatory  or  penitentiary  system 
as  a  supplement  to  criminal  law  cannot  be  well  over- 
rated. It  may,  however,  be  doubted  whether  the 
application  of  such  a  violent  penalty  to  boys  (involving 
complete  and  permanent  separation  from  all  home  ties) 
can  safely  be  trusted  to  subordinate  judges,  or  is  at  all 
appropriate  to  any  except  (after  cogent  proof)  the  most 
incon-igible  offenders.  There  is  distressing  evidence  the 
other  way,  and  it  is  much  to  be  feared  that  an  over  zeal 
in  favour  of  a  special  mode  of  reclamation  may  operate 
as  a  serious  invasion  of  public  liberty,  and,  in  not  a  few 
instances,  occasion  intolerable  haitlship. 


CHAPTER  XI. 

THE   LAW  OF   CIVIL   PROCEDURE. 

There  is  one  large  department  of  law  wliich  occupies 
a  conspicuous  place  in  both  modern  and  ancient  legal 
systems,  and  which  it  might  seem  proper  to  explore  before 
passing  to  Laws  of  Procedure.  This  department  is  that 
which  contains  the  law  of  what  are  called  delicts,  civil 
injuries,  or,  in  English  law,  torts. 

The  Law  of  Delicts,  however,  has  two  distinct  aspects, 
and  it  is  only  in  one  of  these  that  it  can  be  scientifically 
considered  apart  from  other  portions  of  the  law.  In 
one  of  these  aspects,  the  Law  of  Delicts  brings  into 
distinct  notice  for  the  first  time  a  number  of  rights,  in 
themselves  of  the  highest  importance,  yet  which  have 
not  been  previously  considered  under  any  other  former 
head  of  law.  Such  are  rights  to  personal  liberty  of 
locomotion,  rights  to  personal  security,  rights  to  the 
essential  conditions  of  health,  rights  to  be  fairly  spoken 
about  and  written  about. 

In  some  codes  these  rights  are  superficially  mentioned 
in  an  early  portion  of  the  code,  but  they  are  in  themselves 
of  too  vague  and  indeterminate  a  nature  to  admit  of 
being  described  with  any  precision,  apart  from  the  con- 
sideration of  definite  modes  of  infringement.  These 
modes  are  capable  of  being  accurately  announced  and 
limited;  and,  historically  speaking,  it  is  not  till  these 
modes   have   been   discovered   by   experience    that    the 


CIVIL  INJURIES.  291 

reality,  tlie  value,  and  the  extent  of  the  rights  is 
recognized.  Thus,  in  one  of  its'  aspects,  the  law  of  civil 
injuries — which  includes,  among  other  matters,  the  mode 
of  violating  the  general  class  of  rights  above  described 
— affords  the  earliest  introduction  to  this  class  of  rights. 
These  rights  are  obviously  of  the  utmost  importance  to 
the  welfare  of  the  community,  and  they  afford  the  most 
distinct  proof  of  the  •function  which  law  performs  in 
defending  the  individual  personaHty  of  the  several 
members  of  all  the  constituent  groups  of  which  the  State 
is  composed. 

It  is  different  with  the  other  leading  classes  of  rio-hts, 
such  as  the  rights  arising  from  special  relationship,  rights 
of  ownership,  and  rights  of  contract.  Most  of  these 
rights  admit  of  being  described  and  limited  vnth  the 
utmost  precision;  and  therefore  there  is  a  certain  con- 
venience in  treating  all  the  rights  together  by  them- 
selves, and  all  the  possible  modes  of  infringing  the  rights 
also  separately  by  themselves. 

It  might  be  supposed  that  these  two  portions  of  the 
law  would  exactly  coiTespond,  or,  at  least,  be  complemen- 
tary, to  each  other.  But,  owing  chiefly  to  historical 
causes,  there  are  many  rights — especially  rights  of  o^^^ler- 
ship — which  share  in  the  indeterminateness  akeady  pre- 
dicated of  the  essential  rights  of  personal  security.  It 
has  come  about  that  violations  to  rights  of  ownership 
habitually  take  certain  definite  forms;  and,  though  the 
law  in  no  way  professes  to  limit  the  rights  by  the  negative 
standard  supplied  by  such  habitual  modes  of  violation,  yet 
an  advantage  (at  least,  for  purposes  of  procedure)  is 
gained  by  cataloguing  together  these  habitual  kinds  of 
aggression,  and  imparting  to  them  a  distinctness  which 
shall  serve  to  ensure  their  immediate  recognition. 

The  truth  of  this  theory  is  illustrated  by  two  circum- 
stances.    In   the   fii'st  place,  it  is  not  usual  to  include 


292  CIVIL   INJURIES. 

breaches  of  contract  among  civil  injuries,  and  in  English 
law  they  are,  for  some  purposes,  clistmctly  opposed  to 
them.  The  reason  of  this  is  that,  in  contract,  the  breach 
of  the  right  must  presuppose  an  exact  circumscription 
of  the  measure  of  the  right.  The  artificial  tie  by  which 
a  contractor  restiicts  his  future  action  cannot  be  in- 
definite or  vague ;  or,  at  least,  if  it  be  so,  cannot  for  the 
fu'st  time  be  reduced  to  definiten^ss  by  the  illegal  act 
of  the  other  contractor.  The  parties  themselves  (in  de- 
pendence on  the  State)  furnish  the  measure  of  the  right, 
and  therewith  the  measure  of  the  injury.  The  one  and 
the  other  exactly  coincide,  and  can,  for  no  useful  purpose, 
be  treated  apaiiu 

Where,  on  the  contrary,  it  is  the  State  which 
directly  furnishes  the  measure  of  the  right,  as  in  the 
case  of  rights  to  personal  security  and  rights  of  o^^^ler- 
ship,  it  may  invite  the  co-operation  of  its  own  courts 
of  justice,  as  guided  by  the  experience  of  the  most 
habitual  modes  of  trespass  or  aggression,  to  give  precision 
and  definiteness  to  the  general  rights  it  accords. 
Another  circumstance  illustrating  the  theory,  that  it  is 
chiefly  for  convenience  of  procedure  that  violations  of 
the  most  important  rights  are  often  treated  apart  from 
the  rights  themselves,  is  the  close  juxtaposition  of  delicts 
and  actions  in  Justinian's  Institutes ;  and  this,  too,  in  spite 
of  the  formally  closer  connection  of  contracts  and  delicts, 
both  givuig  rise  to  obligations. 

There  is  no  part  of  the  law  on  which  what  may  be 
called  the  success  of  the  whole  legal  system  more  obviously 
depends  than  that  part  which  is  concerned  with  the 
administration  of  justice,  or,  in  the  largest  sense  of  the 
expression,  on  "laws  of  procedure."  The  object  of  this 
part  of  the  law  is  to  secure  that  the  most  expeditious 
and  convenient  remedy  is  accorded  in  the  case  of  the 


THE   LAW   OF   CIVIL   PROCEDUHE.  293 

actual  or  threatened  violation  of  rights.  The  essence  of 
a  right  is  that  the  State  will  lend  its  aid,  in  case  of  need, 
to  maintain  and  enforce  it.  If  the  State  is  tardy  in 
lending  its  aid,  or  if  the  conditions  of  accepting  that  aid 
are  onerous  or  expensive,  or  if  the  machinery  for  supply- 
ing the  aid  is  uni-eliable  in  its  movements,  to  that  extent 
the  rights  conceded  by  the  State  are  worthless,  and  the 
law  which  affects  to  create  and  protect  them  is  abrogated. 

It  must  then  be  the  care  of  the  State  to  ensure  that 
(1)  the  rights  and  duties  which  it  originates  are  clearly 
ascertained;  and,  in  case  of  controversy  as  to  their 
existence  or  extent,  that  the  persons  immediately  con- 
cerned may,  with  as  little  a  loss  as  j)Ossible  to  themselves, 
further  than  is  caused  by  their  own  acts  or  defaults,  have 
a  ready  opportunity  afforded  them  of  clearing  up  doubts. 
The  State  must  again  ensm-e  (2)  that  in  case  of  a  right 
being  actually  violated,  or  of  its  violation  seeming  im- 
minent, the  person  invested  with  the  right  have  a  ready 
opportunity  of  making  his  complaint  known ;  of  having 
the  exact  measiu-e  of  the  actual  or  possible  injury  (which 
includes  the  measure  of  the  particular  right  in  question) 
coiTectly  detennined  by  responsible  State  officials ;  and  of 
claiming  the  interference  of  these  officials  to  award  him 
redress  or  protection.  The  State  must  (3)  further  provide 
effective  means  of  putting  an  injured  person  as  far  as 
possible  in  the  same  situation  in  which  he  would  have 
been  but  for  the  injury ;  and  this,  partly,  on  the  ground 
of  good  faith  towards  the  person  invested  with  the 
violated  right,  and,  partly,  in  order,  by  way  of  general 
admonishment,  to  render  more  secure  all  rights  not  as 
yet  violated. 

The  first  duty  of  the  State — that  of  anticipating  contro- 
versy by  making  the  nature  and  measm-e  of  rights  and 
duties  unmistakably  clear — may  be  performed,  and  in  an 

advanced  condition  of  society  is  performed,  in  two  ways ; 
14 


294  A   LEGAL   PROFESSION. 

one  that  of  bestowing  as  mucli  pains  as  possible  upon  the 
formal  expression  and  publication  of  the  law,  and  the 
other  that  of  calling  into  existence  and  fostering  a  legal 
profession. 

Both  these  tasks  are  for  many  ages  spontaneously 
proceeded  with  Jong  before  they  are  made  distinct 
objects  of  conscious  State  policy.  Nevertheless,  in  a 
I'^eemingly  advanced  state  of  society,  such  as  that  of 
England  at  this  day,  it  is  customary,  in  some  quarters,  to 
confuse  the  legal  profession  with  other  professions ;  and 
to  resist  schemes  for  the  education  of  it  at  the  hands  of 
the  State  on  the  ground  that  it  is  not  so  much  the  concern 
of  the  State  as  of  the  individual  suitor  whether  a  legal 
profession  is  a  well-educated  or  ill-educated  body,  and 
that  the  individual  suitor  may  be  trusted  to  discover  for 
himself  the  standard  of  learning  and  skill  which  he  thinks 
essential  to  his  purpose. 

It  is  obvious,  however,  that  the  analogy  between  the 
legal  profession  and  a  body  of  voluntary  practitioners  of 
any  other  art  is  wholly  delusive,  because  the  relation  of 
the  subject-matter  concerned — that  is,  law  —  to  the 
vitality  of  the  State  itself,  wholly  independently  of  its 
relation  to  the  interests  of  particular  persons,  is  left  out  of 
account.  It  is  of  the  most  vital  moment  to  the  State 
that  the  legal  system  be  correctly  expounded,  so  as  to 
prevent  needless  litigation,  and  gradually  to  dispense 
with  all  litigation;  that  the  slow  and  spontaneous 
growth  of  law — which,  even  under  the  best  codified 
system  of  law,  must  ceaselessly  proceed — should  be  as 
little  irregular  and  capricious  as  possible;  that  the 
arguments  of  advocates  in  courts  of  justice  should  be 
as  concise,  as  unsophistical,  as  helpful  to  the  real 
enucleation  of  the  points  in  dispute,  and  as  conducive 
to  the  administration  of  certain  and  speedy  justice  as 
possible;  and  that  a  race  of  men  should  be  in  constant 


TROCESS   OF  A   CIVIL   TRIAL.  295 

trainins:  of  the  hio-liest  sort,  either  to  take  their  seats  on 
the  judicial  bench,  or  to  give  efficient  and  reliable  aid  to 
the  Legislature  when  engaged  in  contemplating  amend- 
ments of  the  law. 

In  the  previous  chapter,  on  Criminal  Law,  it  was 
found  necessary  to  anticipate  some  of  the  proper 
subject-matter  of  the  present  chapter,  inasmuch  as  the 
general  process  of  a  judicial  investigation,  as  concerned 
with  the  hypothetical  existence  of  a  rule  of  law  on  the 
one  hand,  and  with  an  alleged  condition  of  facts  on  the 
other,  is  the  same  whatever  the  part  of  the  legal  system 
involved.  In  that  chapter,  however,  the  prominent  topic 
kept  in  view  was  the  mode  of  successfully  prosecuting 
crimes  without  sacrificing  the  claims  of  public  liberty. 
There  are  yet  other  considerations  to  be  borne  in  mind 
in  the  administration  of  justice,  which  will  more  appro- 
priately be  entered  upon  here. 

Assuming  that  litigation  is  really  to  take  place,  and 
that  all  means  of  peaceable  settlement  of  disputed  rights, 
whether  by  seeking  professional  and  extra-judicial  counsel, 
or  by  reference  to  arbitration,  have  been  exhausted  without 
efiect,  it  must  be  the  care  of  the  State  that  the  public 
judicial  inquiry  be  conducted  with  the  utmost  despatch, 
economy,  convenience  to  suitors,  and  certainty.  It  is 
only  by  long  empirical  experience  and  a  tedious  course  of 
disastrous  failures  that  the  value  of  these  ends  becomes 
appreciated,  or  the  possibility  of  attaining  them  by  con- 
scious efibrt  so  much  as  conjectured.  Nevertheless,  the 
experience  of  Kome  and  England,  which  is  in  a  large 
measure  an  independent  one  in  each  case,  goes  to  prove 
that  there  is  an  inevitable  course  through  whidi  judicial 
procedure  travels,  and  a  definite  character  to  the  attainment 
of  which  it  unceasingly  tends. 

It  seems  universally  confessed  that  the  whole  pro- 
ceedings necessarily  resolve  themselves  into  two  distinct 


296  PLEADING. 

parts — the  one  concerned  with  ascertaining  the  real  point 
or  points  in  dispute  between  the  parties ;  and  the  other 
with  determining  the  reality  of  essential  facts  alleged  on 
either  side,  and  the  existence  or  applicability  of  cited 
rules  of  law.  The  first  part  of  the  process  is  a  necessary 
interlude  or  transitional  stage  between  the  vague  and 
indefinite  controversy  which  a  sense  of  injury  produces, 
and  which  passion  fans  into  a  flame,  and  the  cold  and 
emotionless  inquiry  which  is  conducted  within  the  walls 
of  a  court  of  justice. 

The  process  of  ascertaining  what  are  the  facts  which 
one  party  alleges,  and  the  other  denies,  and  of  separating 
them  from  facts  either  admitted  by  both  parties  or 
wholly  irrelevant  to  the  true  issue,  is  one  which  needs, 
indeed,  the  general  supervision  of  a  judicial  officer,  but 
does  not  call  for  the  active  interposition  of  a  court  of 
justice.  How  many  facts  are  relevant  to  the  issue  in  any 
given  case  may  be  a  difficult  question  to  answer,  and 
much  injustice  may  follow  from  a  rash  or  precipitate 
judgment  in  the  matter.  Much  must  depend  upon  the 
subject-matter  of  the  suit,  and  the  actual  complication  of 
the  affairs  which  have  led  to  it.  Much  must  also  depend 
upon  the  nature  of  the  tribunal  to  which  the  ultimate 
decision  on  the  law  or  on  the  facts,  or  on  both  of  them, 
have  to  be  referred. 

If  the  tribunal  be  popularly  constituted,  and  composed 
of  persons  possessed  of  no  previous  legal  training,  a 
greater  care  may  have  to  be  taken  in  the  preliminary 
sifting  of  the  facts  than  wliere  the  tribunal  consists  of  a 
single  Judge  or  body  of  Judges. 

It  is  to  be  remembered  that  there  are  two  opposite 
risks  to  which  the  process  of  separating  the  essential  facts 
in  dispute  from  the  non-essential,  and  questions  of  law  from 
questions  of  fact,  is  liable.  One  of  these  is  that  of  forcing 
the  statement  of  the  case  on  either  side  into  a  [)ure]y 


PLEADING.  297 

artificial  and  conventional  groove,  whicli,  in  default  of 
timely  correction,  is  always  liable  to  become  technical  in 
the  extreme.  The  result  is  that,  as  often  as  not,  through 
mere  accidental  nonconformity  with  the  established 
system,  the  object  of  the  parties  is  defeated,  and  the  real 
issue  never  goes  to  trial.  It  may  be,  indeed,  that  a 
wholly  false  and  side  issue  becomes  substituted  for  it.  It 
is  true  that,  in  the  formulary  system  of  pleading  at  Rome 
and  the  common-law  system  of  pleading  in  England, 
ingenious  devices  were,  and  are,  resorted  to,  to  obviate  or 
diminish  this  danger.  Such  are  what  are  known  as  the 
"prcescriptiim"  "amended  pleadings,"  "new  assignments," 
and  "multiplicity  of  pleading."  These  remedies  are 
undoubtedly  of  gi'eat  value,  though  the  necessity  for 
their  presence  points  to  the  characteristic  evils  of  the 
whole  system. 

The  other  risk  aUuded  to  is  the  admission  of  such  a 
loose  preliminary  statement  of  the  facts  on  both  sides  as, 
while  retaining  many  of  the  disadvantages  inherent 
in  the  last-mentioned  system  of  pleading,  has  none  ol 
its  advantages  in  the  way  of  saving  the  labour  of  the 
judicial  tribunal.  It  was,  no  doubt,  a  consciousness  of 
the  existence  of  both  these  risks  that  led,  in  Rome,  to  the 
popularity  and  final  establishment  of  the  cognitiones  ex- 
traordinariw,  and,  in  England,  to  the  existing  simplicity 
of  pleading  adopted  in  the  Divorce  Court  and  the  modern 
County  Court. 

The  process  of  the  cognitiones  extraordinarice  had 
for  its  purpose  the  formal  merger  of  what  had  hitherto 
constituted  two  distinct  parts  of  the  procedure,  without 
sacrificing  what  was  really  precious  in  either.  The  plead- 
ings were  no  longer  modes  of  determining,  before  the 
actual  trial,  what  was  the  issue  between  the  parties,  but 
rather  modes  of  conducting  the  actual  litigation  in  the 
very  heat  of  the  struggle.     The  pleading  (if  such  it  could 


298  EOMAX   AND   ENGLISH   TLEADIXG. 

still  be  called)  took  place  after  tlie  parties  had  come  into 
court,  and  were  under  the  eye  of  the  judge.  The  judge 
was  now  no  longer  distinguished  from  the  superior 
magistrate  who,  in  earlier  times,  simply  supervised  the 
whole  process,  and,  after  finding  the  issues,  referred  them 
to  the  decision  of  such  judge  or  judges  as  he  chose 
to  nominate.  Still  the  formal  modes  of  statement 
and  counter-statement,  of  "confession  and  avoidance," 
and  blank  denial,  were  stiU  preserved  in  their  ancient 
dress;  the  difference  being  that,  in  point  of  time,  the 
pleas  succeeded  the  "  litis  coTitestatio"  or  commence- 
ment of  the  actual  trial,  instead  of  preceding  it,  and  the 
language  in  which  they  were  conveyed  might  be  as 
informal  as  possible,  the  whole  being  taken  down  in 
writing  at  the  time  by  public  officers  named  epistolares 
or  officiales. 

The  modern  English  innovation  on  the  old  formal 
system  of  pleading,  though  mostly  confined  as  yet  to  such 
courts  as  have  been  recently  created,  is  connected  with 
the  same  causes  that  gave  rise  to  the  growth  of  the  simpler 
system  at  Rome ;  that  is,  the  reduction  of  the  functions  of 
the  jury,  and  the  aggregation  of  all  judicial  functions  in 
the  person  of  a  single  judge.  In  the  English  County 
Courts,  and  in  the  new  Probate  and  Divorce  coui-t,  the  jury 
has  been  made  only  a  possible  and  occasional,  instead  of 
being  a  necessary  and  universal,  tiibunal.  In  these  courts, 
for  the  vast  multitude  of  cases,  the  judge  is  the  sole  arbiter 
both  as  to  the  law  and  the  facts.  It  thus  becomes  less 
necessary,  in  general,  to  distinguish,  previously  to  the 
trial,  between  the  questions  of  law  and  of  fact ;  and  it 
becomes  more  necessary  to  afibrd  the  judge  the  largest 
possible  opportunity  of  making  himself  complete  master 
of  the  real  relative  situation  of  the  parties,  witliout 
hampering  him  by  technical  rules.  The  usual  kinds  of 
cases   in  the  courts  into  which   the   simpler  modes   of 


EVIDENCE.  299 

pleading  have  as  yet  been  alone  introduced,  and  the 
extreme  similarity  or  identity  in  the  character  of  the 
facts  to  which  the  general  routine  of  business  relates, 
have  made  the  exjDeriment  of  the  new  method  a 
peculiarly  safe  one.  It  probably,  however,  marks  a 
real  stage  in  the  general  history  of  pleading  at  which 
the  procedure  pursued  in  all  the  other  courts  is  likely 
sooner  or  later  to  arrive.  The  Supreme  Court  of  Judica- 
ture Act  of  1873  affords  substantial  encouragement  to 
these  expectations. 

So  soon  as  the  real  questions  in  dispute  between  the 
parties  have  been  ascertained,  and  questions  as  to  the 
existence  or  exact  purport  of  the  rules  of  law  applicable 
have  been  separated  from  those  relating  to  controverted 
facts,  it  becomes  necessary  to  provide  a  convenient 
mechanism  for  testing,  in  the  most  speedy,  economic, 
and  infallible  method,  the  comparative  value  of  the 
evidence  produced  by  the  rival  parties.  Such  a  mechanism 
is  found  in  what  are  called  "  rules  of  evidence,"  which 
are,  in  fact,  series  of  propositions,  partly  theoretical  and 
partly  practical,  founded  upon  experience,  and  having  for 
their  purpose  the  simplification  and  shortening  of  the 
process  of  proof.  The  character  of  these  rules  varies  con- 
siderably from  country  to  country,  and  from  age  to  age. 
They  have  always  afforded  a  curious  reflection  of  the 
state  of  society  in  which  they  have  grown  up,  and  they 
have  generally  been  largely  infected  with  the  superstitions, 
prejudices,  antipathies,  and  false  or  inadequate  scientific 
and  logical  notions  of  the  day.  Thus,  the  superior  guilti- 
ness of  a  thief  caught  in  the  act,  the  conclusiveness  of  the 
trial  by  ordeal,  the  value  of  torture,  and  the  habitual 
mendaciousness  of  persons  not  believing  in  a  future  state 
of  rewards  and  punishments,  have  at  one  time  or  another 
impressed  themselves  on  the  national  consciousness  of  very 


300  BURDEN   OF   PROOF. 

different  nations ;  while  the  last  of  them  has  a  certain 
amount  of  weight  in  England  even  at  the  present  day. 

It  is,  however,  one  of  the  most  signal  marks  of  modem 
legal  progress  that  the  subject  of  evidence  is  now  treated 
as  one  requiring  for  its  due  consideration  all  the  light 
that  can  be  thrown  upon  it  by  logical  science,  judicial 
experience,  and  regard  for  administrative  speed  and 
economy.  It  is  still  habitually  recognized  that  it  is  the 
proper  task  of  the  judge  to  control  and  regulate  the  pro- 
duction of  evidence ;  and,  in  order  to  prevent  the  operation 
of  arbitrary  caprice  in  discharging  this  task,  it  is  necessary 
to  mark  by  law  the  limits  of  the  judge's  functions  in  this 
respect.  But  the  only  recognized  objects  of  a  law  of  evi- 
dence in  modern  times  are  (1)  to  shorten  and  simplify 
legal  proceedings  by  excluding  evidence  on  the  ground  of 
its  invariable  unreliableness  or  its  useless  prolixity;  (2) 
to  determine  the  mode  of  taking  evidence  both  in  court 
and  out  of  court,  and  to  devise  such  securities  as  may 
seem  most  expedient  for  imparting  to  it  the  greatest 
possible  value. 

The  first  question  to  be  settled  is  as  to  which  of  the 
two  parties  incurs  the  burden  or  responsibility  of  bringing 
positive  proof  of  the  assertions  already  made  in  the  pre- 
paratory pleadings.  This  question  is  determined  partly 
by  regarding  the  actual  situation  of  the  argument  at  the 
time  of  coming  into  court,  and  partly  by  framing  what 
are  called  legal  presumptions  in  favour  of  one  side  or  the 
other.  These  presumptions,  which  may  or  may  not  be 
held  capable  of  being  rebutted  by  extrinsic  proof,  are 
general  propositions  originally  formed  on  a  vast  amount 
of  forensic  experience,  found  to  be  of  great  and  practical 
value. 

Such  presumptions  are  that  a  prisoner  is  to  be  held 
innocent  till  he  is  positively  proved  to  be  guilty;  that 
a  Avill,  deed,  or  other  document,  regular  in  form,  and 


BURDEN   OF   PROOF.  301 

pnrpov!:ing,  on  the  face  of  it,  to  have  been  duly  witnessed 
and  executed,  has  been  duly  witnessed  and  executed; 
that  the  holder  of  a  bill  of  exchange  has  paid  a  price 
for  it  to  the  person  who  has  transferred  it  to  him; 
that  a  person  ui  possession  of  housebreaking  tools  is 
intending  to  use  them  for  an  unlawful  purpose.  It  is 
obvious  that  these  presumptions  travel  through  a  very 
long  range,  some  of  them — as  the  one  last  quoted,  and  the 
similar  one  regarding  the  possession  of  stolen  goods — being 
nothing  more  than  the  everyday  generalizations  of  the 
most  vulgar  experience ;  and  others, — such  as  that  of  the 
presumed  compliance  with  forms,  in  the  case  of  documents 
purporting  on  their  face  to  be  formal, — being  in  the 
highest  degi'ee  artificial  and  arbitrary. 

Some  presumptions,  indeed,  which  are  not  allowed  to 
be  rebutted,  are  in  special  cases  directly  opposed  to  facts, 
and  yet  they  are  supported  solely  on  the  ground  of  the 
greater  inconvenience  of  constantly  listening  to  evidence 
adduced  to  prove  that  they  do  not  apply.  The  incapacity 
of  persons  under  a  certain  age  to  make  contracts,  and,  under 
a  lower  age,  to  commit  crimes,  are  nothing  more  than  pre- 
sumptions of  personal  immaturity,  which  can  never  really 
be  determined  by  reference  to  a  sharply  described  age. 
But,  whatever  the  origin  or  substance  of  these  presump- 
tions, their  general  purpose  is  invariably  the  same — that 
of  either  excluding  the  necessity  of  producing  evidence 
altogether,  or  of  determining  the  order  in  which  it  must 
be  produced. 

It  was  said  that  one  main  purpose  of  laws  of  evidence 
was  the  exclusion  of  some  sorts  of  evidence  on  the  ground 
of  its  invariable  unreliableness.  It  has,  however,  now 
become  an  established  principle  that  general  assumptions  of 
the  unreliableness  of  certain  sorts  of  evidence  are  extremely 
precarious,  and  must  be  admitted  with  the  utmost  parsi- 
mony.    Because  evidence  is  unreliable,  it  is  not  therefore 


802  EXCLUSION   OF   EVIDE^-CK 

of  necessity  valueless;  and  a  great  mass  of  evidence,  mostly 
unreliable,  may,  by  proper  sifting,  be  made  to  disclose  seeds 
of  truth  of  tlie  utmost  value.  The  old  English  doctrine  of 
the  expediency  of  excluding  "witnesses  on  the  ground 
of  real  or  supposed  interest  in  the  case  must,  as  often  as 
not,  have  excluded  all  the  people  who  M^ere  near  enough 
at  hand  to  know  anything  about  the  matter.  This  is 
especially  true  of  the  parties  to  the  suit  themselves.  In 
the  case  of  an  oral  contract  between  two  parties,  it  must 
surely  be  better  to  hear  what  they  have  to  say,  and  to 
compare  the  rival  accounts  together,  than  to  shut  one's 
ears  for  fear  of  hearing  a  good  deal  of  falsehood. 

There  is  no  doubt  some  subtraction  to  be  made 
from  the  general  value  of  the  evidence  of  certain  par- 
ticular classes  of  persons,  and  notably  so  of  children, 
policemen,  and  scientific  theorists  of  all  sorts.  Much 
good  can  be  done  by  cataloguing  the  general  in- 
firmities to  which  the  evidence  of  such  persons  is 
frequently  liable.  This  liabibity,  however,  is  no  ground 
for  excluding  the  evidence,  but  only  for  commenting 
upon  it. 

Assuming,  then,  that  sound  principle  is  in  favour  of 
excluding  no  witness  whatever  on  the  grounds  of  sup- 
posed interest  in  the  suit,  of  connection  with  the  parties, 
or  even  of  known  bad  character  (a  ground  of  exclusion 
which  at  Rome  was  the  most  familiar  of  all),  the  next 
question  presented  is  as  to  the  expediency  of  limiting  the 
topics  on  which  evidence  may  be  ofiered,  or  of  otherwise 
restricting  the  matter  which  a  witness  may  be  allowed 
or  invited  to  speak  to.  One  obvious  rule  must  here  be 
made,  that  the  purpose  of  the  trial  be  kept  in  view 
throughout,  and  therefore  that  the  evidence  ofiered  must 
have  a  bearing,  direct  or  indirect,  on  the  issue  to  be 
decided. 

It    is    attended  with    gi'eat    public    inconvenience. 


RELEVANT  FACTS.  303 

besides  waste  of  labour  and  time,  to  allow  ■witnesses 
to  take  advantage  of  the  opportunity  to  obtrude  on 
the  court  masses  of  irrelevant  matter  which  can  in  no 
way  affect  the  decision  of  the  suit.  It  may  be  difficult  for 
the  judge,  or  even  for  the  suitors  and  their  legal  advisers, 
always  to  predict  what  matters  are  hkely  to  prove 
relevant  to  the  issue  and  what  not.  But  the  difficulty 
of  drawing  the  hne  with  accuracy  for  all  cases  is  no  reason 
for  drawing  no  line  at  all  in  any.  '  The  responsibility 
must  be  cast  uj^on  the  judge  of  determining  how  far, 
upon  these  principles,  evidence  shall  be  limited. 

It  is  sometimes  even  attempted  to  iGLx  by  law  what 
shall  be  held  relevant  evidence.  (See  the  Indian  Evi- 
dence Act  of  1872.)  But  the  danger  of  occasionally 
excluding  important  evidence,  not  falhng  under  the  legal 
category  of  "relevant  facts,"  is  so  great  that  it  is 
doubtful  whether  such  a  description,  by  anticipation, 
can  prove  really  satisfactory  or  safe  in  practice.  The 
only  secure  plan  is  to  leave  a  very  large  discretion  to 
the  judge,  while  providing  that,  in  the  case  of  an  obvious 
miscarriage  of  justice  ensuing  through  an  unwise  exercise 
of  his  discretion,  the  suffering  party  be  at  liberty  to  have 
the  trial  over  again.  This  is  the  practice  at  present  in 
Enoiand  in  civil  cases,  and  the  "new  trials"  which  it 
occasions  are  not  frequent  enough  to  give  rise  to 
reasonable  complaint. 

Even  with  respect  to  really  relevant  facts,  however,  a 
distinction  must  be  made  between  what  has  come  under 
the  witness's  personal  observation,  and  matters  which  he 
is  led  to  beheve  only  through  his  reUance  upon  the 
credibility  of  some  one  else,  or,  at  least,  through  his 
personal  estimate  of  the  value  of  some  evidence  or  other. 
This  evidence  covers  not  only  the  speech  of  the  persons 
on  whom  the  witness  is  accustomed  to  rely,  but  writings 
and   documents   which   he   has   seen,   and   upon  which, 


o04<  CIRCUMSTANTIAL   EVIDENCE. 

believing  in  their  genuineness,  he  has  based  certain 
opinions.  The  manifest  distinction  here  indicated  has 
given  rise  in  England  to  the  familiar  description  of  all 
evidence  not  directly  based  on  the  personal  observations 
of  a  witness  as  "  hearsay."  There  is,  beyond  doubt,  much 
practical  use  in  giving  a  distinct  name  and  place  to  all 
that  class  of  evidence,  the  probative  value  of  which  rests 
on  some  other  considerations  than  the  mere  trustworthi- 
ness of  the  senses  of  a  present  witness,  tested  by  such 
logical  processes  as  the  tribunal  may  employ  in  order  to 
ascertain  the  truth. 

It  is  necessary  here  to  interpose,  parenthetically,  the 
distinction  between  "direct"  and  "circumstantial"  evi- 
dence ;  the  former  kind  of  evidence  implying  that  what 
the  witnesses  saw,  or  heard,  or  felt,  constitutes  the  fact 
or  facts  which  are  the  essential  topics  of  the  investigation  ; 
and  the  latter  kind,  that  the  reported  sensations  of  the 
witnesses — taken  together,  it  may  be,  with  other  kinds 
of  proof — need,  in  addition,  a  train  of  reasoning  from 
which  the  existence  or  nonexistence  of  essential  facts 
may  be  presumed.  In  either  kind  of  evidence,  the 
sensations  of  the  witnesses  are  equally  important ;  and 
in  either  kind  it  might,  or  might  not,  be  allowable  to 
admit  "hearsay"  evidence — that  is,  evidence  deriving 
some  of  its  value  from  the  credibility  of  absent  persons 
or  documents,  and  not  from  the  mere  reported  sensations 
of  present  witnesses. 

The  distinction  of  "  hearsay  "  from  other  evidence  has 
sometimes  being  complained  of  as  unnecessary  and  im- 
practicable. But  it  is  a  real  and  essential  one,  though 
fault  may  be  found  with  the  practice  of  absolutely  ex- 
cluding all  evidence  classed  as  "  hearsa}"."  It  is  obvious 
that  it  is  the  lowest  and  least  valuable  fonn  of  evidence, 
since  the  persons  or  documents  to  which  credence  is 
invited  are  absent,  and  were,  most  likely,  never  subjected 


"hearsay"  evidence.  305 

to  that  severe  scrutiny  which  alone  could  have  sufficed 
to  test  their  real  meaning  or  character.  English  law  has 
allowed  a  good  many  exceptions  to  the  rule  excluding 
"  hearsay "  evidence ;  but  it  has  occasionally  proceeded 
by  the  rather  indirect  path  of  saying  that  the  evidence 
which  it  determined  not  to  exclude  was  not  "  hearsay." 
Thus  English  law  is  generally  consistent  with  itself  in 
excluding  "  hearsay  ; "  though  the  legal  and  the  logical 
distinctions  between  evidence  believed  on  the  authority 
of  present  witnesses  as  to  what  they  themselves  heard  or 
saw,  and  evidence  believed  on  the  reported  authority  of 
absent  persons  and  documents,  are  not  always  strictly 
in  accord. 

The  remarks  that  have  above  been  made,  on  the 
principles  which  apply  to  the  discussion  of  how  far 
evidence  should  be  excluded  or  restricted,  chiefly  relate  to 
witnesses  giving  oral  evidence  in  court.  But  there  are 
kinds  of  evidence  other  than  that  capable  of  being  sup- 
plied by  the  mouths  of  witnesses  actually  present  at  the 
trial ;  and  there  are  occasions  in  the  process  of  conduct- 
ing certain  classes  of  suits  in  which  it  may  be  desirable 
to  have  the  evidence  received  in  the  first  instance  out 
of  court,  and  only  the  result  of  it  produced  in  court,  if 
called  for. 

This  last  process  is  especially  applicable  in  cases  in 
which  a  certain  number  of  facts  are  admitted  on  both 
sides,  and,  in  fact,  are  presupposed  in  the  statement  of  the 
case  of  each  of  the  parties.  The  formal  establishment  of 
these  facts  may  be  none  the  less  necessary  in  order  to 
prevent  ulterior  or  accidental  disputes.  Such  facts  are 
the  dates  of  births,  deaths,  marriages,  the  due  registration 
of  documents,  and  other  facts  of  a  like  kind.  It  may  be 
convenient  for  the  court  before  which  the  trial  takes  place 
to  have  all  the  facts  which  are  either  indisputable,  or  not 
disputed,  clearly  ascertained  beforehand,  so  as  to  be  able 


306  DEPOSITIONS   OUT   OF   COURT. 

to  address  itself  with  undivided   attention  to  the   facts 
actually  in  dispute. 

In  some  cases  this  evidence  thus  received  out  of  court 
may  consist  of  the  reported  proceedings  of  an  inferior 
court,  which  has  made  a  preliminary  investigation. 
The  report  of  these  proceedings  may  be  turned  to  account 
at  the  actual  trial,  especially  in  criminal  cases,  either 
because  other  evidence  proves  defective,  or  because  it  seems 
hopelessly  contradictory,  and  needs  all  the  help  that  can 
be  obtained  from  any  quarter.  It  is  upon  such  a  prin- 
ciple as  this  that,  at  the  trial  of  a  prisoner  in  England,  the 
"depositions"  of  the  witnesses  taken  before  the  magis- 
trate at  the  previous  investigation  are  occasionally,  but 
not  invariably,  read,  either  at  the  wish  of  the  prisoner  or 
of  the  prosecuting  counsel.  Similarly,  the  depositions  of 
witnesses  at  the  point  of  death,  and  who  have  since  died, 
and  of  persons  in  foreign  countries  who  cannot  be  present 
at  the  trial,  are  admitted  as  supplementary,  if  not  as 
essential,  evidence.  Such  evidence,  again,  is  sometimes 
allowed  to  be  specially  prepared  in  order  to  facilitate  the 
process  of  pleading, — as  by  means  of  sworn  "  interroga- 
tories" administered  out  of  court,  and  to  be  answered 
on  oath. 

With  respect  to  the  admission  of  some  of  the  last- 
mentioned  kinds  of  evidence  one  useful  rule  obtains  in 
English  law,  which  operates  in  the  way  of  beneficially 
restricting  the  whole  amount  of  evidence  received.  The 
rule  is  that  the  best  evidence  must  always  be  produced;  or, 
rather,  that  no  evidence  will  be  received  which  expresses 
on  the  face  of  it  that  a  more  reliable  form  of  evidence 
than  itself  could  be  produced.  This  rule  is  nearly  allied 
to  that  excluding  evidence  consisting  of  the  assertions  of 
absent  persons ;  but  the  two  rules  are  by  no  means  co- 
extensive with  one  another.  The  rule  now  mentioned, 
for  instance,  excludes  oral  evidence  of  a  contract  if  it 


CEOSS-EXAMINATIOX  o07 

appears  that  it  has  heen  reduced  to  wiiting,  as  well  as 
evidence  of  the  contents  of  any  docnment  so  long  as 
there  is  no  insuperable  obstacle  to  the  production  of  the 
document  itself  The  rule  against  "hearsay,"  strictly 
interpreted,  would  exclude  such  evidence  in  either  case 
absolutely. 

It  was  said  that  laws  of  evidence  have  for  their 
purpose  not  only  the  regulation  of  the  admissibility  of 
evidence,  but  also  tliat  of  the  modes  of  taking  evidence. 
These  modes  must  be  determined  by  considerations  of 
convenience,  despatch,  economy  of  labour  and  expense,  and 
security  against  fraud  and  impostures.  The  four  main 
kinds  of  evidence  are  (1)  personal  witnesses,  (2)  docu- 
ments, (3)  public  records,  and  (4)  physical  monuments. 

With  respect  to  the  three  last,  the  only  security 
possible  is  to  take  ordinary  precautions  against  forgery ; 
to  insist,  as  far  as  it  is  practicable,  on  the  production  of 
originals  instead  of  copies ;  and,  where  this  is  impracti- 
cable, to  regulate  the  mode  in  which  the  faithfulness  of 
the  copies  shall  be  guaranteed. 

With  respect  to  the  first  species  of  evidence,  the'  most 
obvious  and  commendable  of  all  methods  is  the  oral 
examination  of  witnesses  in  open  court,  attended  with 
what  is  called  "cross-examination," — that  is,  a  process 
of  rigid  questioning  from  the  opposite  side  directed  to 
searching  the  grounds  of  the  witness's  answers,  and  to 
testing  his  capacity  and  opportunities  for  observation, 
as  well  as  his  general  credibility.  In  England,  even 
this  oral  examination  has  been  considerably  restricted 
by  definite  rules  which,  in  criminal  cases  at  least,  are 
of  great  importance  to  public  liberty.  Such  a  rule  is 
that  of  abstaining  from  asking  leading  questions,  or 
questions  which  in  their  structure  suggest  the  form 
and  matter  of  the  answer.     Such  questions  are,  however, 


308  JUDICIAL   OATHS. 

freely  admitted  in  cross-examination.  It  was  not  so  loug 
ago  that  leading  questions  were  only  discouraged  when 
put  by  prisoners  examining  adverse  witnesses,  while 
they  were  freely  allowed  to  the  prosecution.  But  this 
scandalous  injustice  is  now  entirely  abolished,  and  the 
same  rule  is  applied  with  strict  impartiality  to  the 
prisoner  and  the  prosecuting  counsel.  The  abuse  implied 
in  leading  questions  would  seem  to  be  the  darkest 
spot  on  the  administration  of  justice  in  Continental 
countries. 

The  notion  of  an  "  oath,"  in  its  religious  aspect,  as  the 
main  security  for  the  trustworthiness  of  a  witness,  is 
almost  equally  obsolete  in  modern  times  with  a  belief  in 
the  value  of  torture  as  a  test  of  truth.  It  is  generally 
accepted,  at  the  present  day,  that  the  imposition  of  an 
oath  adds  no  fresh  guarantee  for  credibility  in  the  case  of 
a  morally  disposed  witness,  while  it  affords  to  an  immoral 
witness  a  shelter  and  stimulus  for  his  mendacity.  To  a 
witness  not  believing  in  the  theological  facts  to  the  truth 
of  which  the  form  of  the  oath  appeals,  the  application 
of  the  oath  is  either  a  puerility  or  an  offence,  or  both. 
In  this  last  case  the  feelings  provoked  are  the  least  of  all 
likely  to  make  the  witness  highly  susceptible  to  the 
obligations  of  truth. 

The  only  justification  for  the  preservation  of  the 
oath,  in  the  administration  of  justice,  is  that  some  solemn 
form  is  needed  to  remind  the  witness  of  the  importance 
of  the  occasion,  of  the  serious  issues  at  stake,  and  of  the 
legal  penalties  which  follow  the  offence  of  wilfully  giving 
false  evidence.  No  form  is  more  solemn  to  persons  who 
believe  in  a  God  than  one  which  reminds  them,  on  the 
face  of  it,  of  His  character  and  government ;  and  where 
the  bulk  of  the  witnesses  examined  in  courts  of  justice 
have  such  a  belief,  such  a  form  may  be  rather  beneficial 
than  otherwise,  so  far  as  they  are  concerned.     But  the 


EVIDENCE   OF   EXPERTS  300 

greatest  possible  facility  should  be  provided  for  having 
the  form  dispensed  with  in  case  of  conscientious  objec- 
tions to  it,  though  even  the  throwing  the  burden  of 
making  any  objection  to  an  almost  universal  practice 
may  press  very  heavily  in  particular  cases. 

Some  observations  must  be  made  upon  one  class  of 
witnesses,  the  examination  of  whom  is  attended  with 
peculiar  difficulties.  The  class  is  that  of  specially  skilled 
witnesses,  or  so-called  experts.  They  are  summoned  in 
cases  in  which  facts  have  to  be  examined  wholly  removed 
from  ordinary  experience,  and  with  which  only  certain 
limited  classes  of  persons  are  conversant.  Such  facts  are 
those  relating  to  exceptional  sorts  of  manufactures;  to 
the  identity  of  handwriting;  and  especially  to  morbid 
conditions  of  mind  and  body  and  bodily  accidents. 

On  all  such  matters  there  are  a  few  persons  who, 
from  a  rare  taste,  or  lifelong  occupation,  or  professional 
training,  stand  in  a  wholly  different  position  towards  the 
facts  forming  the  subject-matter  of  the  inquiry  from 
that  occupied  by  the  general  public,  and  therefore  (most 
probably)  by  the  members  of  a  popular  tribunal.  The 
members  of  the  tribunal  are  thus  unfavourably  situated 
both  for  estimating  the  value  and  meaning  of  the 
evidence  of  any  one  such  witness,  and  still  more  for 
comparing  the  relative  authority  of  each  one  of  a  number 
of  such  witnesses.  The  tribunal  can  therefore  generally 
be  guided  by  nothing  else  than  by  the  demeanour  of  the 
witnesses  in  court,  or  by  general  impressions  received 
from  a  number  of  indefinite  sources  outside  the  court. 
These  tests  are  less  and  less  appropriate  in  proportion  to 
the  recondite  character  of  the  scientific  facts  involved 
and  the  real  ability  of  the  witness,  which  last  is  little 
likely  to  be  appreciated  by  the  vulgar  who  dispense  the 
meed  of  public  fame. 

Ajiother  difficulty  is  added,   however,  by    the   fact 


810  EVIDENCE   OF   EXrERTS. 

that,  in  some  eases, — as  in  tliat  of  a  murder,  man- 
slaughter, railway  accident,  or  sudden  seizure  of  illness, — 
the  witnesses  cannot  (as  in  Patent  cases  and  some 
others)  be  chosen  at  leisure,  but  must  include  those 
who  actually  chanced  to  be  first  called  to  the  spot  at  the 
moment  indicated.  The  evidence  of  such  jjersons  will 
not,  and  cannot,  be  confined  to  mere  matters  of  descriptive 
fact,  but  must  include  those  of  scientific  opinion.  These 
accidental  witnesses  may  "thus  be  pitted  against  men  of 
the  highest  degree  of  professional  eminence ;  but  a 
popular  tribunal,  and  even  a  judge,  may  be  wholly  unable 
to  compare  the  scientific  value  of  the  opinions  on  either 
side.  In  this  way  the  decision  becomes  a  mere  matter  of 
accident. 

Many  solutions  of  this  difficulty  have  been  proposed. 
They  almost  all  point  to  the  public  organization  of  bodies 
of  skilled  witnesses  in  each  of  the  important  departments 
in  which  they  are  constantly  demanded,  and  to  a  special 
preference  being  given  to  their  evidence  in  the  adminis- 
tration of  justice.  Such  witnesses  might  have  to  make 
a  preliminary  report  to  the  court  on  the  scientific 
character  of  the  other  evidence  to  be  ofiered,  and  on  the 
professional  authority  of  the  witnesses;  and  this  report 
might  be  simply  read  at  the  trial,  or  also  made  the  basis 
for  the  cross-examination  of  those  who  have  prepared  it. 
Or  the  report  might  be  merely  tendered  subsequently 
to  the  reception  of  the  other  evidence,  and  as  a  comment 
upon  it,  thus  forming  mere  material  for  the  summing-up 
of  the  judge.  It  is  possible  that,  in  Patent  cases,  even 
a  special  court,  with  scientific  assessors  to  the  judge, 
might  be  organized  in  some  way  after  the  model  of 
foreign  tribunals  of  commerce.  At  the  same  time,  with 
respect  to  all  these  suggestions,  it  is  not  to  be  forgotten 
that  there  is  an  inherent  political  danger  in  organizing 
and  multiplying  special  professional  coteries  appointed 


NATURE  AND  MOEALITY  OF  ADVOCACY.     811 

l)y,   in   constant    communication   with,   and   under  tlie 
control  of,  the  Government. 

As  a  legal  system  approaches  a  high  degTee  of  develop- 
ment, there  are  a  variety  of  facts  which  lead  to  the  gradual 
introduction  of  the  practice  of  professional  Advocacy. 
As  a  good  deal  of  misapprehension  prevails  with  respect 
to  the  nature  and  objects  of  advocacy,  and  as  in  some 
quarters  it  is  believed  to  have  no  moral  justification  what- 
ever, it  will  be  worth  while  to  examine  with  care  the 
real  reasons  upon  which  the  use  of  advocacy  is  based, 

A  litigant  needs  the  assistance  of  a  properly  qualified 
adviser  and  representative  for  a  variety  of  purposes  quite 
distinct  from  one  another.  Such  purposes  are  (1)  inform- 
ation as  to  the  procedure  of  the  court,  and  as  to  the  formal 
mode  of  pressing  his  claim  or  of  resisting  the  claim  or 
charge  of  another ;  (2)  aid  in  eliciting  relevant  evidence 
from  witnesses  in  his  favour,  and  in  exposing  the 
irrelevancy,  inconsistency,  or  general  incredibility  of  the 
evidence  produced  on  the  other  side  ;  (3)  aid  in  arranging 
in  the  most  concise  and  manageable  form  the  facts  of 
his  own  case,  as  well  as  those  of  his  adversary's,  so  as  to 
lay  the  foundation  of  a  simply  reasoned  argument  in  his 
own  favour ;  (4)  aid  in  availing  himself  of  the  rules  of 
law  which  are  in  his  favour  and  in  exposing  the  inapplica- 
bility of  those  which  are  or  may  be  quoted  against  him. 

It  will  be  seen  that  part  of  this  work  is  logical  and 
psychological,  and  part  of  it  connected  with  a  professedly 
erudite  knowledge  of  law  and  of  practice.  AU  of  it, 
however,  demands  special  skill  and  experience;  and 
where  the  witnesses  are  numerous,  the  facts  complicated, 
and  the  law  uncertain,  to  be  destitute  of  such  professional 
help  it  must  put  a  litigant, — brought,  it  may  be,  for  the 
first  time  in  his  life,  within  the  walls  of  a  court  of  justice, 
— at  a  most  serious  disadvantage.     Nevertheless,  it  could 


312      NATURE  AND  MORALITY  OF  ADVOCACY. 

hardly  be  credited  that  it  was  only  at  the  close  of  the 
last  reign  that  prisoners  in  England  were  first  allowed  the 
assistance  of  counsel.  It  had  been  customary,  indeed,  to 
allow  counsel  to  prisoners  in  cases  of  treason ;  but  they 
had  no  constitutional  right  to  the  advantage,  and  the 
concession  of  it  was  often  refused,  or  hampered  with 
limitations,  just  as  the  whim  of  the  judge  happened  to 
dictate. 

It  is,  however,  as  much  to  the  interest  of  the  judge 
and  the  State  that  the  practice  of  employing  counsel 
should  be  encouraged  and  facilitated  as  to  that  .of  liti- 
gants  themselves.  There  is  no  more  miserable  spectacle 
than  that  of  a  rude  and  uneducated  clown,  Math  the 
poorest  command  of  language,  the  dullest  apprehension 
of  the  meaning  of  evidence,  or  even  of  law,  and  with 
complete  inexperience  of  the  proceedings  of  a  court  of 
justice,  setting  to  work  to  defend  himself  It  is  useless 
to  tell  him  he  must  ask  questions  at  one  time  and  make 
a  statement  at  another,  because  the  difference  between 
a  question  and  a  statement  is  one  wholly  ignored  by 
him  in  his  ordinary  speech.  It  is  equally  useless  to  tell 
him  what  are  the  facts  which  are  against  him  and  wliich 
he  must  address  himself  to  controvert,  and  what  are  the 
facts  in  his  favour  and  which  he  must  not  allow  to  be 
controverted.  He  is  plunged  in  a  sea  of  obscurity  and 
mystery,  and  nothing  but  the  casual  benevolence  and 
untiring  patience  of  the  presiding  judge  can  help  him 
out  of  it. 

Similarly,  in  a  civil  case,  any  one  who  attends  courts 
of  justice  knows  how  erratic,  prolix,  and  perverse  is  the 
course  taken  by  a  suitor  who  insists  on  advocating  his 
own  cause,  or  who  is  not  able  to  procure  a  professional 
advocate.  The  time  of  the  court  and  the  country  is 
wasted,  the  minds  and  temper  of  every  one  concerned 
are   tortured,  and  the   ends   of   justice   are    always   in 


NATURE  AND  MOEALITY  OF  ADVOCACY.      813 

special  peril  of  being  defeated.  On  all  these  grounds 
it  is  obvious  that  a  highly-developed  legal  system  and  a 
complete  state  of  civilization  enforces  the  necessity  of 
creating  and  maintaining  a  legal  profession ;  and  that  in 
the  conduct  of  all  suits,  civil  and  criminal,  not  of  the 
simplest  description,  the  co-operation  of  a  professional 
advocate  should  be  provided  for,  if  necessary,  at  the 
expense  of  the  State. 

The  stigma  of  immorality  that  has  proverbially  been 
held  to  attach  to  the  profession  of  advocacy  is  founded 
partly  upon  an  entire  misconception  of  its  purposes, 
and  partly  upon  an  exaggerated  notion  of  the  extent  to 
which  immoral  advocacy  really  prevails.  There  is  no 
doubt  that  the  temptations  to  an  unfair  representation 
of  facts,  to  a  rhetorical  abuse  of  language,  and  to  an 
unconscientious  allegation  of  false,  or  denial  of  true,  con- 
victions are  constantly  present  to  the  advocate,  and  often 
assail  him  with  overpowering  force.  But  they  are  tempta- 
tions to  wrong,  and  not  the  measure  of  what  is  recognized 
as  right.  It  is  the  same  with  the  advocate  as  with  other 
men.  The  more  complex  the  duty,  the  nobler  is  the  suc- 
cessful achievement  of  it,  and  the  deeper  the  disgrace  of 
an  unworthy  failure  in  it.  It  is  for  the  public  and  for 
the  legal  profession  itself  to  set  before  the  advocate 
the  highest  possible  standard  of  integiity  and  faithful- 
ness to  moral  truth,  and  then  to  denounce  all  symptoms 
of  an  immoral  use  of  his  opportunities  as  gross  and 
inexcusable  deflections  from  that  standard. 

In  the  administration  of  any  mature  body  of  laws,  there 
will  be  needed  a  large  number  of  courts  having  very 
different  jurisdictions.  One  principal  division  of  courts 
is  that  into  Courts  of  Original  Jurisdiction  and  Courts  of 
Appeal.  The  necessity  for  appeal  courts  is  caused  not 
merely  by  the  uncertainty  of  the  actual  purport  of  large 


314  COUETS   OF   APPEAL. 

portions  of  the  legal  system,  but  by  the  way  in  which  the 
uncertain  parts  of  law  are  closely  implicated  with  the 
certain  j)arts,  and,  in  procedure,  questions  of  law  with 
questions  of  fact.  In  a  vast  number  of  cases,  the  decision 
of  a  single  judge  on  a  point  of  law  may  be  readily 
accepted  as  final  by  both  parties,  and  the  point  itself  is 
not  sufficiently  doubtful  to  encourage  the  unsuccessful 
party  to  incur  the  risk  of  having  it  reconsidered  else- 
where. But  there  are  confessedly  doubtful  points  of  law 
on  which  it  may  be  in  the  highest  degree  expedient  that 
the  judge,  at  the  moment  of  dealing  with  the  facts, 
should  express  an  unhesitating,  though  provisional, 
opinion.  The  mode  in  which  the  appeal  shovild  be 
conducted,  and  the  amount  of  discretion  which  may  be 
left  to  the  judge  as  to  allowing  it  or  not,  and  the  terms 
upon  which  he  may  allow  it,  are  details  upon  which 
different  legal  systems  will  differ  much  from  one  another, 
and  the  same  legal  system  will  differ  with  respect  to 
different  sorts  of  cases. 

Another  important  division  of  courts  is  that  into 
Courts  of  Inferior  and  Courts  of  Superior  Jurisdiction. 
In  all  countries  there  are  a  class  of  cases,  both  civil  and 
criminal,  which  may  be  described  as  being  of  a  routine 
character,  and  yet  multitudinous  in  quantity.  The  facts 
are  easily  ascertainable,  and  the  law  scarcely  admits  of 
dispute  except  in  very  peculiar  and  rarely  occurring 
circumstances.  On  these  grounds  there  is  much  convenience 
in  establishing  a  set  of  courts,  distributed  as  far  as 
possible  throughout  the  country,  in  which  the  proceedings 
are  exempt  from  many  of  the  formalities  which  are 
essential  to  the  fair  solution  of  more  difficult  questions. 
The  test  of  suitability  of  a  case  for  the  higher  or  lower 
order  of  courts  may  be  founded  on  the  amount  of  money- 
value  at  stake,  or  (in  criminal  cases)  of  the  penalty  liable 
to  be  incurred,  or  else  on  the  mere  option  of  one  or  both 


SUPERIOR  AND  INFERIOR  COURTS.        815 

of  the  parties, — with  or  without  the  concurrence  of  the 
judge,  and  with  or  without  security  being  given  for 
future  costs,  that  is,  the  expenses  of  proceeding  in  the 
higher  courts.  It  may  even  be  expedient,  as  in  France 
(and  in  some  few  classes  of  causes  in  England),  to  have 
the  earlier  stages  of  every  trial  travelled  over  in  infe- 
rior courts. 

The  next  main  division  of  courts  is  that  founded 
on  the  nature  of  the  subject-matter,  a  certain  peculiarity 
of  procedure  being  either  inherently  adapted  to  certain 
kinds  of  business,  or  (through  historical  causes)  being 
traditionally  associated  with  them.  Such  courts  are 
Courts  of  Probate  and  Divorce,  of  Bankruptcy,  of 
Admiralty,  Church  Courts,  and  Tribunals  of  Com- 
merce. The  object  of  the  institution  of  these  several 
courts  is  sufficiently  indicated  by  their  titles.  They  also 
differ  from  one  another  according  to  the  extent  of  their 
jurisdiction;  the  procedure,  for  instance,  of  Courts  of 
Bankruptcy  and  of  Probate  and  Divorce — the  jurisdic- 
tion of  which  extends  to  matters  of  a  purely  administra- 
tive character — differing  from  that  of  t)thers  in  respect  of 
the  nature  of  the  pleadings,  of  the  forms  of  conducting 
the  actual  trial,  and  especially  of  the  constitution  of  the 
tribunal. 

The  most  remarkable  variation  from  the  normal  type 
is  that  supplied  by  the  Continental  institution  of  Tri- 
bunals of  Commerce.  One  essential  characteristic  of 
these  tribunals,  as  at  present  existing,  is  that  the  judges 
are  eminent  merchants,  elected  by  their  fellow-merchants 
as  being  recommendables  par  la  probite,  V esprit  d'ordre, 
et  reconomie."  (See  French  Code  de  Commerce,  618.) 
Another  characteristic  is  the  absence  of  the  formalities, 
technicalities,  and  consequent  delays,  by  which  proceed- 
ings in  other  courts  of  justice  are  usually  or  necessarily 
attended.     The    reason    for   instituting    courts    of  this 


316  TRIBUNAL   OF  COAOIERCE. 

nature  is  found,  partly,  in  the  peculiarity  of  the  subject- 
matter,  conversance  with  commercial  habits  and  practices 
being  held  to  be  here  of  higher  value  as  a  judicial  quali- 
fication than  knowledge  of  law, — and  partly  in  the  im- 
portance of  conunercial  disputes  being  settled  with  the 
utmost  promptitude,  an  importance  held  almost  to  exceed 
that  of  obtaining  a  greater  security  for  justice  in  awaitiiag 
a  more  patient  process,  and  in  a  more  rigorous  observance 
of  precautionary  solemnities.  The  value  to  foreign  mer- 
chants of  having  ready  to  their  hands  a  tribunal  in 
which  the  proceedings  are  exempt  from  the  technicalities 
of  the  national  system  of  law,  is  also  dwelt  upon  as  a 
special  recommendation  of  these  courts. 

Should  these  coiu'ts  be  introduced  into  England,  it 
may  be  expedient  to  combine  a  professional  legal,  Avith 
the  lay,  element  in  the  constitution  of  the  tribunals.  It 
has  indeed  been  said  that  the  practice  of  summoning 
"  special  juries "  of  merchants  in  important  commercial 
cases  rendei-s  the  institution  of  Tribunals  of  Commerce  a 
superfluity.  But  this  objection,  however  valid  within  its 
own  limits,  takes  fio  account  of  what  is  said  to  be  the 
great  recommendation  of  the  institution  as  existing 
abroad,  that  even  where  only  small  sums  are  at  stake, 
justice  is  admruistered  far  more  cheaply,  rapidly,  and 
satisfactorily  to  both  parties  than  in  the  ordinary 
tribunals.  (See  Report  of  Select  Committee  of  House  of 
Commons,  1871.) 

The  subject  of  "costs,"  that  is,  of  who  is  to  pay  the 
expenses  of  the  trial,  is  one  of  fat  gTeater  magnitude  and 
moment  than  perhaps,  at  the  fii'st  glance,  it  seems.  The 
interests  of  three  parties  have  to  be  considered — those  of 
the  plaintiff,  of  the  defendant,  and  of  the  State.  It  has 
been  said  by  some,  with  much  force,  that  all  the  expenses 
of  every  trial  should  be  borne  by  the  State  alone,  because 


THEORY   OF  COSTS.  317 

it  may  be  imputed  to  the  shortcomings  of  the  State  that 
the  law  is  so  uncertain  as  to  admit  of  any  doubt  as  to  its 
meaning  ;  and  even  where  litigation  is  concerned  with  the 
settlement  of  disputed  facts,  the  State,  in  conceding  a 
right,  is  bound  to  supply  freely  the  means  of  protecting 
the  right,  and  is  not  entitled  to  throw  its  o^vn  burden 
upon  either  of  the  contending  parties,  whichever  happens 
to  be  in  the  wrong. 

On  the  other  hand,  it  is  urged  that  the  only  possible 
mode  of  prohibiting  incessant  litigation  of  the  most 
needless  and  vexatious  sort,  is  to  make  the  party  who  is 
proved  to  be  in  the  wrong  bear  some  of  the  expenses 
which  the  State  incurs  in  setting  its  judicial  machinery 
in  motion.  It  may  also  be  said  that  the  necessity  of 
contributing  to  these  expenses,  in  case  of  defeat,  is  at 
once  a  check  upon  wrong-doing  and  an  encouragement 
to  amicable  arrangement  of  controverted  claims. 

The  true  objection,  however,  to  this  practice  of  throw- 
ing the  expenses,  or  part  of  them,  on  one  or  other  of  the 
suitors,  is  that  it  makes  it  far  easier  and  safer  for  a  rich 
man  to  go  to  law  than  for  a  poor  man.  It  thus  ojDerates 
directly  as  an  encouragement  to  the  rich  to  prey  upon 
the  poor.  The  institution  of  the  English  County  Courts 
where  the  costs  are  smaU,  and  the  constant  extension  of 
their  juiisdiction,  have  been  most  important  steps  in  the 
opposite  direction  in  England,  It  is  probable  that  a 
greater  simplification  of  procedure  in  the  Superior 
Courts,  accompanied  by  a  re-publication  of  the  whole 
law  on  a  readily  comprehended  basis  of  arrangement,  and 
with  the  use  of  the  utmost  clearness  of  expression,  would 
(even  if  costs  were  no  longer  payable  by  either  party)  go 
a  long  way  towards  bringing  before  those  courts  ques- 
tionswhich  are  now  improperly  and  tyrannically  excluded, 
and  towards  largely  reducing  the  number  of  those  which 

are  now  needlessly  admitted. 
15 


318  CONFLICT   OF  LAWS. 

There  is  one  great  branch  of  law  which  has  yet  to  be 
considered,  though  the  place  it  must  occupy  in  a  scientific 
exj)Osition  is  somewhat  doubtful.  It  is  sometimes 
described  as  "  Private  International  Law,"  and  sometimes 
as  the  "  Conflict  of  Laws."  Neither  expression  is  exact 
enough  to  indicate  the  true  nature  and  limits  of  the 
laws  to  which  reference  is  made.  The  first  expression 
suggests  a  closer  relation  than  the  facts  justify  to  that 
International  Law  which  deals  with  the  legal  relations  of 
States;  and  the  second  expression  hints  merely  at  some 
of  the  occasions  which  have  called  the  new  body  of  law 
into  being,  but  suggests  no  information  as  to  its  character 
or  whereabouts.  The  true  nature  of  the  law  or  laws 
now  alluded  to  will  be  best  understood  by  a  brief 
description  of  the  circumstances  through  which  it  was 
originally  created,  and  is  still  maintained  and  developed, 
in  every  civilized  State. 

The  courts  of  justice  of  a  State  can  only  have  jurisdic- 
tion over  the  persons  of  those  who  are  either  permanently 
or  temporarily  members  of  the  State,  and  only  with 
respect  to  things  lying  within  the  territory  of  the  State, 
or  over  which,  as  in  the  case  of  things  on  the  high  seas, 
the  executive  power  of  the  State  can  (if  permitted  by 
law)  extend  its  control  Further  than  this,  courts  of 
justice  can  only  (except  by  special  arrangement  between 
two  States)  control  the  acts  of  the  citizens  who  are 
generally  subject  to  their  jurisdiction  so  long  as  they  are 
within  the  national  territory.  With  respect  to  acts  done 
elsewhere,  it  must  rest  entirely  in  the  discretion  of  a 
court  of  justice  in  what  aspect  it  shall  regard  them, 
either  as  it  affects  the  doer  of  them  or  other  persons. 

But  the  progress  of  society,  and  of  international,  social, 
and  commercial  intercourse,  gives  rise  to  circumstances 
which  practically  enforce  on  courts  of  justice  what  may 
be  called  a  great  usur^Jation  of  jurisdiction  in  all  these 


CONFLICT  f)F  LAWS.  319 

respects,  and  it  is  the  rules  which  mark  out  the  province 
and  extent  of  this  enlarged  jurisdiction  which  constitute 
the  branch  of  law  now  under  consideration. 

It  is  to  be  distinctly  observed  that  the  existence  of 
these  rules  owes  its  immediate  origin  to  a  discretionarj'-, 
or  rather  tentative,  exercise  of  jurisdiction  by  courts  of 
justice;  that  the  continuing  validity  of  these  rules,  just  as 
much  as  the  validity  of  all  other  rules  of  law,  depends  on 
the  acquiescence,  implied  or  expressed,  of  the  supreme 
political  authority;  and  hence  that  these  rules,  so  far 
as  they  have  any  validity,  are  part  of  the  national  law 
of  the  State,  and  not  (as  some  seem  to  suppose)  a  bodiless 
phantom  of  law  floating  about  in  the  presence  of  all 
States,  but  attached  to  none.  It  is  true  (though  much 
to  be  regretted)  that  the  rules  appertaining  to  this  part 
of  the  law  are  only  partly  identical  for  many  States, 
and  are  partly  different  for  each.  This  has  induced 
writers  to  confound  what  is  desirable  with  what  reaUy 
exists;  and  to  believe  that  a  real  body  of  (so-called) 
Private  International  Law  exists  somewhere,  though 
many  States  are  exceedingly  perverse  in  the  inter- 
pretation they  put  upon  its  rules. 

The  facts  which  have  given  rise  to  the  extension  of 
jurisdiction  in  question  are  the  sojourning  of  citizens 
of  one  State  in  the  territory  of  another;  marriages, 
divorces,  and  contracts  between  the  citizens  of  the  same 
State  in  the  territory  of  some  other  State,  or  between 
citizens  of  different  States ;  land  and  goods  lying  in  the 
territory  of  one  State  and  owned  or  conveyed  by  the 
citizens  of  another ;  judgments  and  bankruptcies  decreed 
in  the  territory  of  one  State  against  the  citizens  of  another. 
It  will  be  seen  that  on  adjudicating  in  the  territory  of 
any  particular  State  upon  such  facts  as  these,  there  may 
be  as  many  as  four  different  legal  systems  which  the 
judge  may,  on  a  single  occasion,  be  invited  to  apply. 


820  CONFLICT   OF  LAWS. 

One  of  these,  and  the  most  obvious  one,  is  the  law  of 
his  own  country,  that  which  he  administers  in  all  other 
cases  {lex  fori).  According  to  this  law,  strictly  interpreted, 
he  might  have  simply  to  abstain  from  all  interference  in 
the  case  on  the  grounds  already  explained.  Any  way  it 
is  by  this  law  that  the  form  of  the  remedy  must  be  deter- 
mined. Another  system,  applicable  where  ownership  is 
involved,  is  that  of  the  place  where  the  things  are  (Jex 
loci  rei  sitce).  But  this  is  generally  only  adaptable  to 
immovable  things,  as  the  actual  situation  of  movable 
things  may  be  matter  of  interminable  controversy.  A 
third  system  of  law  is  that  of  the  place  w^here  an 
important  act  was  done,  or  (if  a  contract)  where  per- 
formance of  an  act  promised  was  to  take  place  {lex 
loci  actus,  lex  loci  contractus).  A  fourth  system  is 
that  of  the  State  to  which  the  person  immediately 
concerned  may  be  held  to  be  permanently  subject 
through  the  fact  of  an  intentional  residence  in  its 
territory  without  any  distinct  purpose  of  going  else- 
where {lex  domicilii). 

It  must  be  a  matter  for  each  State  to  determine  for 
itself  which  of  these  several  systems  of  law  shall 
be  followed  in  any  case  in  which  a  selection  between 
them  is  possible.  In  some  cases  all  the  different  systems 
may  have  to  be  followed  in  adjudicating  upon  the 
different  parts  of  one  and  the  same  continuous  trans- 
action. It  is  a  misfortune  that  the  civilized  States 
of  the  world  refuse  to  follow  identical  principles  in 
the  adoption  or  recognition  of  each  other's  laws.  Some- 
times a  selfish  commercial  policy,  and  sometimes  a 
narrow-minded  national  prejudice  or  moral  susceptibility, 
stand  in  the  way.  Nevertheless,  considerable  progress 
has  been  made,  especially  in  America,  in  establishing 
the  true  methods  upon  which  the  construction  of  this 
part  of  the  law  must  proceed.     It  is  obvious  that  what 


CONFLICT   OF   LAWS.  321 

lias  been  said  above  of  the  laws  of  different  States  is 
e<iually  applicable  to  the  different  legal  systems  pre- 
vailing in  different  provinces  of  the  same  State,  The 
relations  of  England  and  Scotland,  and  of  the  States 
of  the  xYmerican  Union,  sufficiently  illustrate  this. 


CHAPTER  XII. 

INTERNATIONAL   LAW. 

The  scientific  study  of  law  seems  to  attain  its  highest 
perfection  and  its  noblest  uses  when  it  is  directed  to 
what  is  now  generally  known  as  "International  Law," 
or  the  "Law  of  Nations."  A  prelinrinary  difficulty  is 
here  encountered  as  to  whether  the  rules  of  reciprocal 
action,  to  which  the  Governments  of  modern  civilized 
States  practically  submit  themselves  \dth.  more  or  less 
steadiness,  can  properly  be  held  to  constitute  a  body  of 
law  in  the  same  sense  of  this  term  as  is  involved  when 
the  rules  for  the  internal  government  of  any  particular 
State  are  concerned.  There  are,  no  doubt,  obvious  resem- 
blances between  the  two  sorts  of  rules,  and  there  are 
also  obvious  discrepancies.  The  question  is,  whether 
a  new  term  should  be  invented  to  designate  the  rules 
practically  guiding  the  mutual  action  of  States  in  certain 
respects,  or  whether  it  is  rather  expedient  that  the 
meaning  of  the  term  law  should  be  extended  to  admit 
of  its  covering  both  classes  of  rules.  This  inquiry  opens 
out  another,  as  to  whether  the  definition  of  the  term  law, 
as  given  by  the  most  recent  and  celebrated  school  of 
Enoiish  leoal  writers,  is  not  based  on  too  restricted  a 
conception  of  the  phenomena  to  which  it  relates;  and 
it  is  only  at   the   moment  of  attempting  to  apply  the 


MR.  AUSTIN   ON   INTERNATJONAL   LAW.  323 

former  definition  of  law  to  international  uses  that  the 
insufficiency  of  that  definition  is  discovered. 

Mr.  Austin,  indeed,  endeavoured  to  escape  the  neces- 
sity of  reconstructing  his  own  definition  by  denying  to 
the  rules  for  regulating  the  mutual  relations  of  States  the 
name  of  laio.  He  styled  those  rules,  in  their  assemblage, 
morality.  Two  inconvenient  consequences  followed  from 
this  innovation.  In  the  first  place,  the  word  morality 
was  restricted  to  expressing  the  sort  of  outward  and 
formal  acts  which  alone  belong  to  the  well-recognized 
region  of  the  "  Law  of  Nations."  In  the  second  place, 
and  following  from  the  former  consequence,  the  field  for 
moral  action  and  for  moral  rights  and  duties  as  between 
States — so  far  as  that  action  and  those  rights  and  duties 
do  not  admit  of  the  precise  and  logical  circumscription 
demanded  in  courts  of  justice — was  entirely  ignored. 
In  fact,  niorality,  as  between  States,  was  made  to  exhibit 
itself  in  nothing  else  than  in  the  limited  number  of 
precisely  ascertained  rules  hitherto  making  up  the 
so-called  "Law  of  Nations,"  and  the  name  'morality 
was  implicitly  denied  to  every  other  standard  of  mutual 
responsibility  between  States. 

Had  this  language  prevailed,  the  indirect  influence  of 
it  must  have  been  to  conflict  with  one  of  the  most 
promising  tendencies  of  the  present  age, — that  is,  to 
recognize  moral  rights  and  duties  as  existing  between 
States  wholly  independently  of  the  strictly  legal  rights 
and  duties  which  properly  belong  to  the  great  structure 
called  the  "Law  of  Nations"  or  "International  Law." 
Those  moral  rights  and  duties,  like  the  moral  rights 
and  duties  of  private  life,  reach  far  too  deeply,  and 
extend  too  widely,  to  be  ever  made  the  topic  of  forensic 
circumscription  or  legislative  enactment.  Legal  rights 
and  duties  are  their  signs  and  buttresses,  but  not  their 
substitutes.     Law  is  ever  the  handmaid  of  morality,  but 


824"      CRITICISM  OF  BEXTHAM's  use  of  the  TER.M  "  LAV/." 

where  the  notion  of  moraHty  is  limited  by  that  of  law", 
morality  and  law  will  soon  perish  together. 

To  return  from  this  apparent,  though  not  real,  digres- 
sion occasioned  by  Mr.  Austin's  attempt  to  make  "  Inter- 
national Law  "  and  "  International  Morality  "  convertible 
expressions,  it  becomes  necessary  to  consider  the  true 
lesson  enforced  by  the  seemmgly  impracticable  phenome- 
non presented  by  the  body  of  rules  forming  the  bulk  of 
what  is  called  the  "Law  of  Nations."  This  lesson  is  that  the 
distinguishing  characteristics  of  true  law  must  be  sought 
for  somewhere  else  than  in  the  nature  of  the  authority 
from  whence  it  proceeds,  and  in  the  certainty  of  the 
punishment  by  which  its  infraction  is  attended. 

It  is  not  necessary  to  warn  a  Continental  student  of 
the  importance  of  this  lesson.  None  of  the  words  redd, 
droit,  nor  jus  have  ever  been  restricted  to  the  narrow 
meaning  that,  in  the  hands  of  Bentham  and  Austin,  the 
word  law  has  acquired  in  England.  And  yet  it  is  true 
that  the  excessive  precision  by  which  the  use  of  the  word 
law  has  of  late  been  narrowed  in  this  country  has  tended 
to  save  English  students  from  many  of  the  pitfaUs  of 
vagueness  and  indeterminateness,  not  to  say  sentimen- 
tality, to  which  some  foreign  writers  are  undoubtedly 
prone.  But  precision,  valuable  as  it  is,  must  not  be 
sought  at  the  expense  of  truth  ;  and  the  question  is  now 
presented,  as  to  whether  recent  English  legal  writers  have 
not,  in  aspiring  after  clearness  and  brevity,  entailed  upon 
themselves  a  loss  which  is  not  appreciable  at  the  full  till 
the  problem  of  the  scientific  nature  of  so  called  "  Inter- 
national Law  "  comes  under  treatment. 

Assuming  then  (what,  in  view  of  the  mighty  expan- 
sion which  there  is  reason  to  believe  International  Law 
is  likely  to  undergo,  it  is  proper  to  assume)  that  the 
distinguishing  characteristics  of  law  must  be  those  which 
are  common  to  it  when  looked  at  as  determining  the 


LAW  IN  THE  IXTERXATIONAL  SENSE,       325 

outward  relations  of  persons  to  one  another  within  a 
particular  State,  and  as  determining  the  relations  of  States 
to  one  another  in  the  great  commonwealth  of  States,  the 
following  may  be  taken  as  among  those  characteristics. 

Both  within  the  limits  of  a  particular  State,  and  in 
the  commonwealth  of  States,  law  (if  it  is  accepted  and 
generally  obeyed)  is  a  "command  of  a  supreme  political 
authority."  The  main  difficulty  is  as  to  what  is  meant  by 
a  "  supreme  political  authority  "  in  a  society  of,  presum- 
ably, equal  States,  and  with  no  greater  or  more  effective 
organization  for  enforcing  their  general  will  on  recalci- 
trant individual  States  than  at  present  exists. 

The  exact  analogy  to  this  state  of  things  is  to  be 
found  in  that  described  by  Sir  H.  S.  Maine  as  existing 
at  one  time,  and  even  to  some  extent  still,  in  the  village 
communities  of  India,  From  time  immemorial  iides  of 
ownership,  of  procedure,  and  of  family  succession  existed 
in  those  communities  in  the  absence  of  any  recognized 
government  from  without,  and  of  any  permanent  organiza- 
tion, of  the  nature  of  government,  within.  The  rules  were 
very  generally,  or  almost  universally,  observed.  They 
were  felt,  as  it  were  unconsciously,  to  be  part  of  the  order 
of  nature,  against  which  resistance  or  objection  could  not 
so  much  as  suggest  itself  They  were  obeyed  far  better 
than  are  the  laws  of  most  highly  organized  States,  and 
yet  both  a  supreme  political  authority  and  a  punishment 
for  disobedience  might  be  said  to  be  entirely  wanting. 

This  analogical  case  must  be  considered  in  connection 
with  the  known  phenomenon  of  the  actual  existence  and 
potency  (up  to  a  certain  point)  of  a  body  of  international 
law,  and  further,  with  the  historical  circumstance  that  in 
every  known  civilized  country  law  and  government  have 
grown  together,  the  existence  of  a  definite  political 
authority  being  generally  later,  in  point  of  time,  than  the 
foundation  of  the  nation's  laws.     The  result  proves  that. 


826      INTERNATIONAL  AND  CUSTOMARY  LAW. 

thougli  law,  when  fully  developed,  presupposes  the  pre- 
sence of  a  supreme  political  authority,  yet  binding  rules 
of  action  are  recognized,  and  the  habit  of  obedience  to 
such  rules  is  formed,  long  before  that  political  authority, 
to  which  ultimately  law  will  owe  its  main  efficacy,  is 
actually  constituted. 

It  may  be  said,  indeed,  that  the  constitution  of  a 
central,  definite,  generally  recognizable,,  and  indisputable, 
political  authority  is  the  last  and  greatest  triumph  of 
law.  The  history  of  law  is  that  of  the  evolution  of  cus- 
tomary rules  out  of  the  innate  genius  of  the  people,  and 
of  the  conscious  modification  or  extension  of  those  rules 
by  a  series  of  tentative  political  authorities  operating 
from  without.  A  final  reconciliation  and  balance  between 
the  rival  influences  is  achieved  so  soon  as  a  supreme 
political  authority  exists  which  is  in  perfect  harmony 
with  the  tendencies  and  aspirations  of  the  popular  life. 

At  this  stage  the  further  development  of  customary 
law  is  arrested,  because  it  is  no  lonoer  serviceable.  All 
the  legislation  proceeds  henceforward  directly  from  the 
supreme  political  authority  which  finally  represents  the 
political  conscience  of  the  nation.  Not  that  even  here, 
further  changes — introduced  by  new  influences  working 
on  the  popular  mind — may  not  still  have  to  be  under- 
gone. A  fresh  stratum  of  customary  law  may  gradually 
form  itself,  and  the  whole  series  of  events  included  in  the 
above  political  narrative  may  again  repeat  themselves. 

Exactly  the  same  course  of  events  may  be  anticipated 
in  the  formation  of  a  body  of  international  law.  It  is  no 
disparagement  to  the  description  of  that  sort  of  law,  as 
being  a  "  command  of  a  supreme  political  authority,"  to 
say,  that  at  present  no  such  authority  is  anywhere  to  be 
found,  and  that  if  anywhere  it  w^ere  to  be  found,  it  would 
be  as  soon  as  possible  repudiated. 

Every  improvement  that  is  introduced  into  the  rules 


EVOLUTION  OF  A  SUPREME  AUTHORITY.     827 

of  international  law ;  every  attempt  that  is  made  to  pro- 
duce uniformity,  certainty,  and  publicity;  every  effort 
that  is  made  after  harmony  of  spirit  and  of  interpretative 
method  on  the  part  of  the  public  lawyers  of  different 
States  ;  all  point  to  the  gi'adual  elaboration  among  States 
of  what  may  be  properly  called  a  supreme  political 
authority.  What  form  this  authority  will  take  it  may 
be  impossible  for  us,  in  this  generation,  so  much  as  to 
g-uess ;  just  as  the  members  of  an  early,  spontaneously 
developing  village  commvmity  had  no  materials  from 
which  to  construct  a  notion  of  civil  government  in  its 
later  sense. 

It  is  not  possible  that  the  authority  of  the  future  will 
take  the  form  of  the  governor  of  an  universal  empire, 
supported  by  military  force.  Nor  is  it  easy  to  see  the 
steps  by  which  the  States  of  Europe,  physically  and 
morally  unequal,  can  ever  be  brought  to  confederate 
themselves  on  wise  and  permanent  conditions.  These 
are  matters  for  the  political  speculator,  and  will  serve 
rather  to  animate  the  hopes,  than  to  engage  the  activity, 
of  the  practical  statesman.  The  question  is  as  yet  too 
far  ahead  for  it  to  be  worth  while  to  bestow  much  serious 
labour  upon  its  discussion.  What,  however,  is  indis- 
putable, and,  in  relation  to  the  nature  of  international 
law,  of  the  highest  importance,  is  that  the  actual  existence 
and  continuous  amelioration  of  international  law  involves 
in  itself  the  sure  and  gradual  formation  of  a  supreme 
political  authority  among  the  States  of  the  world. 

The  progressive  steps  towards  the  publication  of  a 
definite  system  of  rights  and  duties  by  which  the  legal 
relations  of  States  are,  in  fact,  governed,  imply  a  system 
of  procedure  for  ascertaining  how  far  rights  have  been 
maintained  or  violated,  and  duties  performed  or  omitted. 
A  system  of  procedure  involving  courts  and  judges  will 
thus  be  introduced  and  supported  by  a  competent  authority. 


o28      CONTPASTS  OF  INTERNATIONAL  AND  NATIONAL  LAW. 

This  authority  is  the  supreme  political  authority ;  and  if,  in 
the  existing  reign  of  war,  no  symptoms  of  the  appearance 
of  such  an  authority  are  as  yet  descried,  still  the  actual 
prevalence  of  international  law,  amidst  all  obstacles,  is  a 
sufficient  witness  of  the  advent  of  that  authority. 

The  above  investigation  has  been  conducted  merely 
in  order  to  establish  that,  in  passing  from  the  considera- 
tion of  the  sort  of  rules  which  publicly  regulate  the  social 
relations  of  persons  within  the  limits  of  a  particular 
State,  to  the  consideration  of  those  rules  which  afiect  to 
regulate  the  relations  of  States  to  one  another,  no  real 
change  of  conception  is  encountered;  and  that  one  and 
the  same  definition  of  the  term  law  will  serve  to  cover 
the  applications  of  the  term  to  both  sorts  of  rules.  The 
investigation  is  very  far  from  being  an  unprofitable  one. 
On  the  contrary,  it  is  of  the  utmost  moment  to  establish 
that,  in  the  development  of  the  moral  life  of  humanity, 
an  imbroken  continuity  is  observable,  though  at  certain 
points  in  the  progress  it  may  be  peculiarly  difficult  to 
discover  the  junction. 

It  is  obvious  that  the  simple  rules  upon  which  the 
integiity  of  family  life  and  the  prosecution  of  agriculture 
in  the  earliest  ages  depend  are,  in  their  nature,  scarcely 
distinguishable  from  the  highly  perfected  customary  code 
by  which  an  extensive  village  community  is  enabled  to 
develop  all  the  conditions  of  a  free  and  peaceful  industrial 
life.  It  is,  again,  confessedly  hard  to  draw  a  sharp  line 
between  this  customary  code  and  what  is  called  true  law, 
as  existing  in  a  fully-organized  State  and  as  proceeding 
from  a  determinate  supreme  political  authority. 

But  even  at  this  point  the  course  of  progress  is  not 
concluded.  As  the  intimacy  between  the  States  of  the 
world  increases,  a  fi-esh  career  for  law  is  opened  out ;  and 
if  unprecedented  difficulties  are  encountered  at  this  stage. 


ANALOGY   OF   THE   STATE   AND   A   HUMAN   BEING.       'S'lO 

it  is  only  because  the  elements  that  have  to  be  subtlued 
are  more  hard  and  unmanageable,  and,  on  that  very 
accoimt,  the  ultimate  triumph  of  law  will  be  more  con- 
spicuous and  complete. 

It  is  true  there  are  certain  gi-eat  differences  in  the 
materials  with  which  international  and  national  law 
have  severally  to  deal,  and  it  may  be  well  to  examine 
these  carefully,  in  order  to  estimate  the  exact  value  of 
the  likeness  and  the  unlikeness  of  the  two  sorts  of  law. 

The  main  ground  of  unlikeness  between  the  two  sorts 
of  law  is  to  be  found  in  the  fact  that  the  subjects  of 
national  law  are  individual  human  beings ;  and  of  inter- 
national law,  certain  peculiar  assemblages  of  human 
beings,  denominated  States.  These  States  are  looked 
upon  as  imperishable  in  their  nature,  and  as  preservino- 
through  all  time  a  continuing  identity.  Not  that  it  is 
true  in  fact  that  all  States  live  for  ever,  or  that  States 
are  not  occasionally  so  much  dislocated  and  divided  as  to 
lose  all  identity  for  any  purpose  whatever.  But  while, 
in  national  law,  death,  birth,  succession,  adoption  and 
other  like  events  are  the  familiar  topics  with  which  law 
deals  and  for  which  it  has  to  make  provision  by  a  care- 
fully calculated  estimate  of  the  advantages  and  disadvan- 
tages of  different  lines  of  policy;  in  international  law, 
the  event  of  the  dissolution  or  disruption  of  an  old 
State,  or  the  appearance  of  a  new  one,  is  a  strange  anomaly 
for  which,  in  view  of  its  rarity  and,  as  it  were,  its 
unnaturalness,  little  provision  can  usefully  be  made  by 
anticipation. 

Another  peculiarity  in  the  situation  of  States  as 
representing  the  individual  human  beings  alone  contem- 
plated by  national  law,  is  that  every  State  is  a  comjoosite 
body  made  up  of  such  individual  human  beings,  each 
more  or  less  capable  by  himself  of  counteracting  the 
policy  of  the  State  itself     The  power  of  the  State  over 


330  THE   STATE   A   COMPOSITE   BODY. 

all  its  living  members  is  of  course  theoretically  complete  ; 
and  it  might  be  supposed  that  it  were  not  worth  while  to 
consider  the  'occasional  consequences  of  the  rare  conflict 
of  action  that  may  take  place  between  the  State  and  its 
members.  But  this  power  is  never  practically  complete, 
and  for  some  matters,  and  at  some  periods,  is  much  less 
complete  than  at  others. 

It  happens,  however,  that  the  action  of  even  a  very 
small  proportion  of  the  whole  community,  if  out  of 
harmony  with  the  public  action  of  the  State,  may  succeed 
in  largely  countervailing  the  general  course  of  that  public 
action.  Instances  may  be  taken  from  the  extreme  difii- 
culty  experienced  by  modern-  States,  in  view  of  all  the 
appliances  of  modern  navigation,  and  the  habits  of  free 
commercial  intercourse,  to  discharge  properly  the  duties 
of  neutrality.  A  few  recalcitrant  citizens  of  a  neutral 
State  may  render  the  most  valuable  aid  to  one  or  other  of 
two  belligerents,  and  the  high  prices  paid  for  the  service 
are  likely  to  present  the  most  inordinate  temptations. 
S  J,  in  the  case  of  extradition  and  of  international  copyright, 
a  State  may,  in  spite  of  all  its  corporate  efforts  to  the 
contrary,  fail  to  discharge  its  international  duties  through 
the  delinquencies  and  disloyalty  of  a  few  of  its  own 
citizens,  or  even  through  those  unavoidable  failures  of 
justice  by  which  the  best  administered  system  of  law  is 
occasionally  disfigured. 

So  again,  a  State  may  be  compromised  by  the  rash, 
imprudent,  or  injurious  acts  of  its  citizens  resident  in  the 
territory  of  foreig-n  States.  These  citizens  may  either  be 
private  citizens,  or  may  be  persons  directly  representing 
the  State,  whether  in  a  civil  or  military  capacity.  That 
a  State  should  be  ready  to  protect  every  one  of  its 
members  when  travelling  abroad  under  the  assurance  of 
that  protection,  and  when  conducting  themselves  with 
proper  regard  to  the  laws  and  customs  of  the  people  wit!) 


ANALOGY    OF   THE   STATE  AND  A   CORPORATION.     331 

whom  they  take  up  their  abode,  is  a  proposition  which  no 
one  would  contest.  But  the  proposition  has  been  too 
frequently  extended  in  practice  to  signify  that  for  what- 
ever purpose  citizens  of  one  State  sojourn  in  the  temtory 
of  another,  and  however  they  demean  themselves,  the 
so-called  "  honour  "  of  their  State  compels  it  to  interfere 
on  their  behalf,  even  if  the  result  should  be  war.  This 
is,  no  doubt,  an  abuse,  and  would  now  generally  be 
admitted  to  be  such ;  but  it  serves  to  illustrate  the 
peculiar  character  of  international  law,  owing  to  the 
composite  elements  out  of  which  a  State  is  constructed. 

This  idea,  however,  of  composite  units  is  very  far  from 
strange  to  national  law ;  and  the  whole  historical  progress 
of  that  law,  as  indicated  in  the  gradual  development  of  all 
the  groups  out  of  which  a  fully  organized  nation  is  con- 
stituted, may  be  treated  as  a  preparation  for  the  peculiai 
features  of  international  law.  The  conception  of  a  mer- 
cantile "  corporation,"  which  is  one  of  the  last,  as  that  of 
the  family  is  the  first,  of  the  products  of  national  law, 
carries  with  it  many  of  the  very  same  incidents  which 
have  just  been  described  as  especially  distinguishing  inter- 
national from  national  law.  Thus,  for  some  purposes, 
a  corporation,  as  a  whole,  is  responsible  for  the  acts 
of  every  one  of  its  members ;  and  is  liable,  under  some 
circumstances,  for  his  contracts,  defaults,  and  ^vi'ong  doings. 
A  mercantile  corporation  is  generally  made  to  be  only 
temporary  in  its  duration,  but  it  does  not  come  to  an 
end  by  any  such  natural  event  as  death, — universally 
contemplated  by  law  in  the  case  of  other  "  persons," — and  it 
contains  within  itself  the  seeds  of  a  perpetual  existence. 

Some  corporations,  indeed,  as  those  for  religious,  e.duca- 
tional,  and  charitable  purposes,  seem  by  their  constitution 
to  be  as  imperishable  as  the  State  itself.  Thus  the  lead- 
ing notions  on  which  the  validity  of  international  law 
depends,  especially  those  of  the  permanence    of  States 


332  HISTORY   OF   INTERNATIONAL   LAW. 

and  of  the  relations  of  the  State  to  its  members,  cannot 
but  be  familiar  to  the  citLsen  of  every  developed  State, 
from  the  facts  which  lie  on  every  side  of  him  in  his  own 
system  of  national  law.  It  is  not  necessary  to  insist 
further  on  the  evenness  of  the  progress  from  national  to 
international  law. 

It  is  worth  while,  however,  glancing  at  the  actual 
circumstances  to  which  the  existence  of  the  body  of 
European  international  law  is  due.  It  will  be  found,  that 
if  it  is  true  that,  the  study  of  national  law,  in  a  scientific 
spirit,  is  a  main  aid  to  the  comprehension  of  the  true 
nature  of  international  law,  it  is  also  true  that  a  study 
of  the  history  of  international  law  serves  to  throw  back  no 
small  light  on  the  true  mode  of  growth  of  national  law. 

It  deserves  notice  that  the  very  fact  that  international 
law  was  a  later  gxowth  than  national  law  is  one  of  the 
greatest  relevancy,  and  yet  one  which  has  scarcely,  as 
yet,  attracted  any  attention.  It  was  an  enormous 
advantage  to  all  the  founders  of  the  international  law  of 
Europe — ^whether  legislators  who  published  ordinances 
for  the  guidance  of  the  subjects  of  particular  States,  or 
diplomatists  who  based  treaties  on  the  confessed  validity 
of  special  doctrines,  or  text-book  writers  who  gave  an 
organic  shape  to  a  multitude  of  casual  usages — to  be 
already  familiar,  each  in  his  own  State,  with  a  body  of 
national  law  which  had  already  matured  itself  into  a 
system  at  once  copious,  well- compacted,  and  generally  just. 

It  was  not  only  that  Roman  law  was,  as  it  were, 
the  vernacular  tongue  of  aU  the  statesmen,  diplomatists, 
and  lawyers  of  Europe,  but  that  every  thinker  and 
writer  on  the  topic  of  a  law  of  nations  was  familiarly 
conversant,  in  the  daily  life  of  his  own  particular  coimtry, 
with  legal  machinery,  legal  conceptions  and  methods  of 
disputation,  and  legal  solutions  for  the  complicated  claims 


VALUE   OF   AN   EXISTING  LEGAL   IDEAL.  3oo 

presented  by  the  ordinary  intercourse  and  occupations  of 
mankind.  Thus,  when  once  the  idea  began  to  prevail, 
that  the  governors  of  the  several  States  of  Europe  were 
subject  to  soine  body  of  laws,  bearing  an  analogy  to  the 
national  law  of  each  State,  there  was  no  need  for  a  long 
incubating  process,  during  which  the  substance  of  this 
new  law  should  slowly  acquire  its  true  shape  and  size. 
The  substance  was  fully  developed  at  once  in  all  its 
proportions. 

Not  of  course  that  room  for  indefinite  improve- 
ment was  not  still  left:  the  more  so  as  a  new 
commercial,  social,  and  military  era  was  just  about  to 
commence,  which  must  call  for  doctrines  of  mutual 
relationship  between  States  wholly  unknown  or  in- 
applicable before.  But  whereas  national  law  had  to 
gi'ow  in  the  dark,  slowly  making  its  way  through  the 
dreary  and  accidental  course  of  self-developed  custom, 
there  being  no  guide,  standard,  nor  example  to  direct  the 
pi'imitive  lawgiver,  international  law  had  guides  and 
types  and  examples  in  abundance,  and  best  of  all,  had  a 
legal  language  ready  to  its  hand. 

Thus  different  have  been  the  circumstances,  with 
respect  to  the  presence  or  absence  of  a  pre-existing  legal 
ideal,  which  have  attended  the  growth  of  the  two  sorts  of 
law.  It  need  scarcely  be  noticed  that  a  difference  quite 
as  striking  is  perceptible  in  respect  of  the  pre-existence 
of  a  high  moral  ideal  at  the  epoch  of  the  foundation  of 
international  law.  The  ideal  may  not  have  been  the 
highest  or  even  so  high  as  exists  at  this  day ;  but,  at  the 
epoch  of  the  foundation  of  systems  of  national  law,  there 
was  generally  no  consciously  perceived  moral  ideal  at  all. 

The  function  which  the  so-called  "  law  of  nature  "  has 
performed  in  the  develo^mient  of  a  law  of  nations,  is  a 
proof,  were  such  needed,  that,  at  the  time  at  which  the 
rules  for  regulating  the  mutual  relations  of  States  were 


334!  VALUE   OF   AN   EXISTING  MORAL   IDEAL. 

beginning  to  be  systematized,  a  prevalent  conception 
existed  of  a  great  moral  order  in  "wliicli  States,  like  indi- 
vidual persons,  must  find  their  place.  The  exact  requisi- 
tions which  this  moral  order  implied  were  indeed  very 
obscurely  perceived,  and  were  draAvn  from  quarters  of  the 
most  opposite  character.  Thus  the  maxims  of  primitive 
Christianity  were  mingled  with  the  conclusions  of  Middle- 
age  casuists;  and  the  prescriptions  of  knight-errantry, 
with  the  suggestions  of  a  rudely-calculated  expediency. 
Nevertheless,  for  the  conduct  of  individual  life  within  the 
limits  of  a  single  State,  although  actual  moral  excellence 
was  diffused  over  a  very  narrow  space,  the  moral  standard 
was  high  and  composed  of  the  richest  elements.  These 
elements  included  justice,  mercy,  patience,  fidelity,  truth- 
fulness, self-sacrifice,  generosity,  and  humanity  in  the 
largest  sense. 

It  could  not  fail  to  strike  a  thoughtful  and  jrood 
man  in  the  seventeenth  century,  casting  his  eyes  over 
the  battle-fields  of  Europe,  that,  in  practice,  the  rulers  of 
States  and  the  leaders  of  armies  confessed  a  very  dif- 
ferent creed  in  their  conduct  toward  each  other  from  that 
which  they  confessed  and  loudly  extolled  when  seated 
peacefully  at  home.  The  contrast  was  obvious  and  could 
not  fail  to  suggest  itself  The  only  obstacle  in  the  way 
of  drawing  instructive  lessons  from  the  contrast  was  to  be 
found  in  the  fact  that  war  was  as  old  as  morality  and 
religion  themselves,  and  that  a  belief  seemed  to  be  in- 
eradicably  fixed,  that  men  might  and  ought  to  be  cruel, 
unsparing,  and  treacherous  in  one  department  of  action, 
and  none  the  less  gentle,  forgiving,  and  lo^^al  in  anotlier. 

So  long  as  this  sharp  opposition  between  the  moral 
standard  for  peace  and  for  war,  as  between  the  citizens 
of  the  same  State  and  between  the  citizens  of  difierent 
States,  or  (wliat  meant  much  the  same)  between  friends 
and  between  enemies,  held  its  ground,  the  actual  emergence 


INFLUENCE  OF  CHIVALRY.  335 

of  International  Law  was  impossible,  though  the  possi- 
bility of  its  future  appearance  was  involved  in  the  very- 
fact  of  a  hio-her  moral  standard  co-existino;  in  the  world 
side  by  side  with  the  lower  one. 

Ihe  most  important  steps  in  the  evolution  of  interna- 
tional law  were  those  by  which  the  notion  of  the  entire 
separation  of  the  moral  provinces  in  peace  and  in  war,  as 
between  friends  and  as  between  enemies,  was  gradually 
got  rid  of  Such  a  stej),  eminently,  was  the  remarkable 
institution  of  Chivalry.  The  influence  of  chivahy  in 
carrying  over  the  loftiest  virtues  of  peaceful  life  into 
a  life  of  war,  otherwise  so  strange  to  them,  cannot  be 
exhibited  more  forcibly  than  by  the  following  quota- 
tion from  the  second  voliune  of  Mr,  Ward's  well-known 
"Enquiry  into  the  Foundation  and  History  of  the  Law 
of  Nations,"  p.  161.  "Whatever  savageness  of  temper 
'  a  man  might  naturally  have  possessed,  the  '  point  of 
'  honour'  and  spirit  of  knighthood  had  the  most  palpable 

and  beneficial  influence  in  generating  a  continued 
'  antidote  to  its  consequences.  So  early  as  the  middle  of 
'the  tenth  century,  when  the  Emperor  Henry  I.  intro- 
'duced  tom-naments   into   Gemiany   (which   it  is   well 

known  were  the  fairest  graces  of  chivalry),  it  was 
'  ordained  that  no  one  should  be  admitted  to  that  most 

honourable  of  all  amusements  who  did  not  profess 
'Christianity,  or  who  had  been  known  to  have  been 
'  guUty  of  perjury,  treason,  slaughter  in  cold  blood, 
'sacrilege,  or  violation  of  women.  Certain  it  is,  that 
'  from  about  this  and  the  next  century  (to  which  the 
'  full  birth  of  chivalry  is  generally  ascribed)  we  are  able, 
'  notwithstanding  the  barbarities  that  have  been  related, 
'to  discover,  nearly  all  over  Europe,  a  change  of  manners 
'  which  was  evidently  forced,  because  other  improvements 
'  did  not  keep  pace  with  them,  and  which  may  fairly  be 
'  attributed  to  a  chivalrous  origin."     Mr.  Ward,  in  the 


8oG     FEUDALISM,  THE  CHURCH,  AND  MONARCHY. 

course  of  a  deeply  interesting  chapter  on  this  subject, 
gives  a  series  of  historic  examples  of  the  mode  in  which, 
under  the  influence  of  chivalric  notions,  the  amount  of 
ransom  for  prisoners  was  reduced,  good  faith  was  observed 
with  enemies,  treachery  was  punished,  and  the  current 
harshness  of  practice  in  war  was  in  a  variety  of  ways 
mitigated. 

Another  important  step  in  breaking  up  the  distinction 
between  the  moral  qualities  appropriate  in  peace  and  in 
war  was  Feudalism,  by  which  the  semi-private  relations  of 
the  rulers  of  the  diS'erent  European  States  to  one  another 
were  often  so  complicated,  that  either  war  became  im- 
possible between  them,  or  the  consequences  of  war  were 
largely  mitigated  through  the  active  interposition  of  a 
superior  feudal  lord.  In  the  same  way,  the  ecclesiastical 
institutions  of  Europe,  centering  as  they  did  in  the  Pope 
at  Rome,  were  in  the  highest  degree  conducive  to  the 
creation  of  a  moral  tribunal  to  which  kings,  emperors, 
and  soldiers  were  as  much  amenable  as  the  peasant  and 
the  priest. 

It  may  here  be  noted  that  one  favourable  circumstance 
which  facilitated  the  creation  of  a  system  of  International 
Law  was  the  monarchical  form  of  government  which,  up 
to  comparatively  recent  times,  has  universally  prevailed 
in  modern  Europe.  The  states  of  Europe  were  thus  saved 
from  being  looked  upon  as  mere  abstractions  or  lifeless 
corporations.  Each  State  was  bound  up  with,  and  to  a 
certain  extent  lost  in,  the  individuality  and  fortunes  of 
its  particular  sovereign  for  the  time  being.  The  sovereign, 
on  the  other  hand,  by  his  acquisitions  or  losses,  by  his 
marriage,  by  his  treaties,  by  his  enmities,  and  by  his  wars, 
irreparably  committed  the  State  he  represented,  and  his 
conduct  in  these  respects  was  only  to  a  small  extent 
influenced  by  any  constitutional  forces  within  the  State 
itself. 


RELATIONS  OF  EUROPEAN  SOVEREIGNS.      337 

Now,  bearing  in  mind  that  the  sovereign  was  a 
member  of  a  Christian  commomvealth  and,  as  such,  stood 
in  relations  of  the  closest  intimacy  both  with  the  Pope 
and  with  his  brother  sovereigns ;  that,  in  many  cases,  he 
was  bound  in  the  ties  of  a  close  feudal  union  with  other 
sovereigns ;  that  by  family  ties  he  was  dynastically  related 
to  them  ;  and  that  in  all  public  action  it  was  the  personal 
king  and  not  the  people  he  governed  who  appeared  on 
the  scene, — it  can  scarcely  be  wondered  at  if  some  canon 
of  wise,  rightful,  honest  action  for  the  guidance  of  these 
sovereigns  in  their  mutual  intercourse  should  gradually 
be  conceived  and  come  into  force.  Such  a  canon  in 
fact  was  the  international  law  of  Europe  in  its  inchoate 
form. 

In  the  actual  erection  of  the  comj)lete  structure  of 
international  law,  there  have  been  two  celebrated  schools 
which  severally  have  affected  to  extract  from  different,  or 
even  from  opposite,  sources  the  -rules  of  which  the  body  of 
law  is  composed.  The  one  school  has  rested  the  authority 
for  an  European  law  of  nations  upon  the  actual  usage, 
and  the  assent  implied  in  the  fact  of  that  usage,  of  the 
States  of  Europe.  The  other  school  has  not  felt  itself 
bound  by  the  limitations  implied  in  actual  usage  or  assent, 
but  has  conceived  itself  entitled  to  make  the  European 
law  of  nations  repose  on  the  authority  of  an  antecedent 
"  law  of  nature."  This  law  of  nature  is  here  intended  to 
imply  a  body  of  prescriptions  of  universal  and  necessary 
validity,  the  exact  terms  of  theni  being  discoverable  on  the 
application  of  certain  wide  and  general  maxims  of  justice, 
truth,  mercy,  and  humanity,  to  the  particular  circumstances 
of  the  case  for  which  the  rule  is  demanded. 

It  cannot  be  denied  that  if  the  latter  method  is  the 
more  superficially  attractive,  the  former  one  is  likely  to 
lead  to  results  of  greater  practical  value.  As  a  matter 
of  fact,  it  is  useless  to  construct  a  law  of  nations,  even 


338  THE  METHOD  OF  GROTIUS. 

on  the  most  admirable  and  unimpeachable  principles 
if  the  States  of  the  world  will  not  obey  it.  The  best,  or 
only,  guide  as  to  what  rules  States  are  likely  to  obey  in  the 
future  are  the  rules  by  which  they  have  actually  guided 
themselves-  in  the  past.  Nor  is  the  systematization  of 
these  rules  a  superfluous  task.  The  intermittent  and 
desultory  observance,  indeed,  of  a  certain  beneficial 
practice  may  be  a  sufiicient  indication  that  the  practice 
is  not  unsuited  to  the  times  and  to  the  disposition  of  the 
States  observing  it.  Yet  a  great  deal  may  further  have  to 
be  done  to  ensure  its  permanent  ascendancy,  to  emphasize 
its  importance,  and,  by  advising  common  action,  to 
secure  the  States  adopting  it  against  the  inconveniences 
sometimes  attendant  upon  isolated  action. 

In  this  way  the  formation  of  a  compendious  and 
logically  distributed  scheme  of  the  best  rules  widely 
observed  among  the  States  of  Europe  could  not  fail  of 
going  a  great  way  towards  introducing  principles  of 
order  into  the  intercourse  of  nations.  It  was,  in  fact, 
just  this  task  which  Grotius  succeeded  in  effecting,  and 
the  permanent  influence  and  authority  of  his  great 
Work  is  a  sufiicient  proof  of  the  value  of  the  cautious 
and,  as  it  were,  tentative  method  he  adopted.  The 
shortcomings  of  that  method  were  that,  if  nothing  but 
actual  usage  was  to  be  introduced  into  European  law, 
the  growth  and  development  of  that  law  must  mainly 
be  determined  by  the  accidental  fortunes  and  tendencies 
of  the  several  States. 

The  fact  is  that  international  law,  like  national  law, 
must  necessarily  grow  in  two  directions  at  once.  One 
part  of  it  comes  upwards  from  the  spontaneous  habits 
and  customs  of  those  who  are  subject  to  it.  The  other 
})art  comes  downward  from  the  legislator,  whose  province 
it  is  to  take  a  large  and  a  wide  view  of  all  the  necessities 
and  probabilities  of  the  case ;  to  stimulate   tendencies 


FUNCTIONS   OF  THE   TEXT-BOOK  WEITER.  839 

scarcely  as  yet  apparent ;  to  arrest  proclivities  before  tliey 
come  fixed;  and,  generally,  to  provide  that  such  habits  and 
dispositions  may  gradually  be  formed  as  may  render  even 
spontaneous  customs  more  equitable  and  wise. 

In  the  case  of  international  law  the  functions  of  the 
legislator  have  to  be  discharged  by  a  number  of  different 
persons.  One  of  these  is  the  statesman,  who,  in  making  a 
treaty,  does  his  utmost  to  bind  two  nations,  if  not  more,  to 
the  observance  of  new  rules  dictated  by  a  sense  of  general 
expediency  and  justice,  and  therefore  deserving  of  being 
universally  adopted.  Another  of  the  persons  performing 
the  functions  of  the  legislator  is  the  text-book  writer  on 
international  law,  who,  in  describing  the  rules  actually 
obtaining  among  States,  occasionally  steps  aside  to  point 
out  how  far  those  rules  conflict  with  the  general  interests 
of  humanity  and  how  far  they  subserve  those  interests  ; 
and  what  supplementary  rules  might  advantageously  be 
adopted  in  order  to  make  the  moral  gain  the  highest  con- 
ceivable. Grotius  himself  was  not  neglectful  of  this  part 
of  his  task,  and  perhaps  the  error  of  some  modern  writers 
on  the  subject  has  been  that  of  amplifying  their  task  as 
legislators  to  the  neglect  of  their  task  as  narrators  or 
historians.  There  is  a  place  for  the  exercise  of  both 
functions,  and  the  success  of  attempted  reforms  in  the 
substance  of  international  law  must  largely  depend  on 
the  skill  and  moderation  with  which  they  are  blended 
together. 

In  order  to  estimate  the  existing  condition  of  a  body  of 
law,  there  are  three  points  to  which  attention  must  be 
directed.  In  the  first  place,  in  view  of  the  demands  of 
the  persons  for  whose  use  the  law  is  designed,  its  copious- 
ness affords  an  important  index  to  its  general  sufficiency. 
In  the  second  place,  such  an  index  is  afforded  by  the 
degree  of  symmetrical  form  in  which  the  law  is  presented 


StO  RECENT   GROWTH   OF   INTERNATIONAL   LAW. 

and  arranged.  In  the  third  place,  the  law  must  be 
tested  by  reference  to  the  justice  and  moral  adequacy  of 
its  provisions.  In  view,  then,  of  these  several  require- 
ments— that  is  to  say,  of  copiousness  or  richness  of 
material,  of  symmetry  of  form,  and  of  legislative  wisdom 
— modern  international  law  may  advantageously  be 
examined  in  order  to  ascertain  what  lesson  it  has  to 
teach  with  respect  to  the  progress  and  prospects  of  law 
universally. 

First,  with  respect  to  richness  of  material,  there  is  no 
doubt  that  the  international  law  of  the  present  day  covers 
a  vast  number  of  subjects,  and  contains  a  mass  of  rules  and 
principles,  which  were  scarcely  so  much  as  hinted  at  in 
the  encyclopaedic  work  of  Grotius.  In  the  time  of  Grotius, 
and  even  of  Vattel,  the  only  prominent  topics  of  inter- 
national law  were  the  rights  and  duties  of  ambassadors, 
the  obligations  arising  from  treaties,  the  just  causes  of 
war,  the  rights  and  duties  of  allies,  the  rights  and  duties 
of  neutrals,  and  certain  alleged  qualifications  of  the 
exercise  of  the  extreme  right  of  war.  Doctrines  upon 
these  and  a  limited  number  of  other  topics  were 
announced  in  the  broadest  form ;  but,  with  respect  to 
some  matters,  such  as  the  limitations  of  severity  in  war, 
it  was  openly  confessed  that  there  was  no  law  at  aU, 
though,  according  to  Grotius,  there  were  a  number  of 
temiJeranienta,  or  modifying  principles,  which  inculcated 
the  observance  of  a  practice  gentler  than  that  which  was 
strictly  legal  with  respect  to  putting  prisoners  to  death, 
destroying  the  enemy's  property,  and  annexing  the 
enemy's  territory. 

According  to  Vattel,  there  was  a  distinction  between 
the  "necessary"  and  the  "voluntary"  law' of  nations. 
"Let  us  leave,"  he  says.  Book  III.,  chap,  xii.,  "the  strict- 
"  ness  of  the  necessary  law  of  nature  to  the  conscience 
"  Oi  sovereigns  ;  undoubtedly  they  are  never  allowed  to 


VATTEL   ON   THE   VOLUNTARY   LAW   OF   NATIONS.      841 

"  deviate  from  it.  But  as  to  the  external  effects  of  the 
"  law  among  men,  we  must  necessarily  have  recourse  to 
"  rules  that  shall  be  more  certain  and  easy  in  the  appli- 
"  cation,  and  this  for  the  safety  and  advantage  of  the  great 
"society  of  mankind.  These  are  the  rules  of  the  voluntary 
"  law  of  nations."  This  distinction  was,  in  fact,  based  upon 
the  double  origin  of  international  law  from  essential 
moral  principles — that  is,  the  so-called  law  of  nature — 
and  from  the  actual  customs  which,  in  fact,  regulated  the 
intercourse  of  States. 

The  effect  of  the  distinction  was  the  same  as  that 
introduced  by  Grotius  between  what  was  sifmrauin  jus, 
and  what  was  a  temperamentum.  It  was  to  recognize  one 
part  of  international  law  as  stable  and  eternally  the 
same,  based  as  it  was  on  general  and  broad  doctrines  of 
what  seemed  to  be  of  transparent  validity ;  and  another 
part  as  shifting  and  changeable  with  the  changing 
manners,  fashions,  creeds,  and  customs,  of  the  European 
States. 

It  is  this  last  part  of  international  law,  the  voluntary 
law  and  the  field  of  the  teTnjper amenta,  which  has  under- 
gone improvements  during  the  past  century,  to  such  an 
extent,  indeed,  as  practically  to  abrogate  and  supersede 
much  of  what  originally  was  thought  to  be  its  main 
substance  or  stronghold. 

Modem    international   law   is    mostly    made    up    of 

rules  indebted  for  their  existence  to  physical  and  social 

conditions  which  did  not  exist  two  centuries  ago.     At 

the  present  day,  owing  to  the  facilities  of  locomotion,  and 

to  postal  and  telegraph  communication,  as  well  as  to  wider 

moral   conceptions   and    more    enlightened    commercial 

principles,  the  intercourse  of  nations  with  each  other  and 

of  the  citizens  of  one  nation  with  those  of  another  is  far 

more   noticeable  and  important  in  time  of  j^eace  tlian 

in  time  of  Avar. 
IG 


342  RECENT   MULTIPLICATION    OF   TOPICS. 

Thus,  while  international  law  has  the  functions  to 
perform  of  facilitating  the  intercourse  of  States  and 
their  citizens  in  time  of  peace;  of  obviating  and  deter- 
mining the  occasions  of  war  ;  and  of  moderating  the 
severities  and  restricting  the  area  of  war ;  the  two  last 
of  these  functions  have  been  for  the  last  two,  centuries 
acquiring  a  less  and  less  degTee  of  importance  in  pro- 
portion to  the  development  of  tlie  first.  Not  that  the 
function  of  restricting  the  area  of  war  and  tempering 
its  severity  is  to  be  held  of  small  account  in  itself  On 
the  contrary,  some  of  the  most  beneficial  innovations 
which  international  law  is  daily  witnessing  have  no 
other  purpose  in  view  than  this.  But  the  tendency 
of  these  very  innovations,  as  of  every  other  part  of 
international  law,  is  to  equalize  States  in  point  of 
military  opportunity  and  thereby  to  render  war  a  less 
and  less  satisfactory  criterion  of  their  real  relative 
prowess  and  strength.  Hence,  while  the  improvements 
in  the  laws  of  war  have  been  preparing  the  way  for  the 
abolition  of  that  whole  topic  as  one  belonging  to  inter- 
national law,  the  improvements  in  that  part  of  the  law 
which  concerns  the  peaceful  relations  of  States  are  such 
as  to  warrant  the  hope  of  definite  expansion.  The  latter 
matters  escape  attention,  to  a  great  extent,  even  in  text- 
books on  the  subject,  because  the  mode  in  which  this  part 
of  the  law  is  developed  is  usually  by  treaty,  and  there- 
fore the  legal  handling  of  it  is  sufiiciently  performed  by 
refening  to  the  general  head  of  treaties.  But  when  the 
mass  of  subjects  with  which  modern  treaties  deal  is 
considered,  and  when  the  number  of  treaties  to  which 
every  State  is  a  party  is  calculated,  some  idea  may  be 
formed  of  the  mass  of  rights  and  duties,  almost  wholly 
um-ecognized  in  the  times  of  Grotius  and  even  of  Vattel, 
which  now  form  the  subjects  of  international  law. 

In  the  second  place,  it  was  said  that  the  symmetrical 


CODES   OF   INTERNATIONAL   LAW.  843 

form  of  the  law  afforded  a  test  whereby  to  estimate  the 
height  of  development  it  had  obtained.  International 
law  has  gained  much  in  point  of  form  from  having  been 
cast  into  the  mould  of  Roman  law  by  the  first  writers — 
such  as  Balthazar  Ayala,  Albericiis  Gentilis,  Grotius,  and 
Puft'endorf, — who  published  its  principles  and  rules  in  an 
organic  shape.  This  form  has  never  been  lost  by  Con- 
tinental writers  on  the  subject;  though, as  might  perhaps 
have  been  expected,  American  and  English  text-book 
writers  have  proceeded  independently  of  any  particular 
form  other  than  the  one  which  seemed  at  the  moment 
most    conducive   to    convenience    of    arrangement    and 

o 

reference. 

There  is,  indeed,  a  peculiar  difficulty  in  giving 
harmony  of  appearance  to  the  doctrines  of  international 
law  owing  to  the  very  diverse  basis  on  which  those 
doctrines  rest,  the  varying  amounts  of  authority  and 
certainty  they  carry  with  them,  and  the  indefinite  quali- 
fication of  the  doctrines  themselves  by  the  operation  of 
innumerable  treaties.  Some  eminent  writers  of  the 
present  day  have  endeavoured  to  ride  over  these  difii- 
culties  by  publishing  so-called  "  codes  "  of  international 
law,  which  purport  either  to  present  the  law  as  it  is  at 
this  day, — with  only  such  additions  or  modifications  as 
are  imperatively  called  for  by  the  fact  of  glaring  gaps  or 
contradictions  or  ambiguities, — or  else  to  present  the  law  in 
the  complete  shape  it  ought  finally  to  assume,  however  far 
it  may  seem  to  be  away  from  attaining  it  at  the  present 
day.  The  code  of  Professor  Bluntschli  represents  one 
belonging  to  the  first  of  the  two  types,  and  that  of  Mr. 
Dudley  Field  of  New  York  represents  one  belonging  to 
the  other.  It  is  scarcely  possible  to  speak  too  highly  of 
both  these  tentative  efforts,  and  they  cannot  fail  both 
to  prove  most  valuable  guide-books  to  the  student,  as 
well  as  standino-  remembrancers  to  statesmen  of  ideals  to 


344        MODERN   VIEWS   OF   EXPEDIENCY   AND   JUSTICE. 

which  the  public  law  of  Europe  ought  increasingly  to 
conform  itself. 

This  leads  to  the  consideration  of  the  third  test,  that  of 
the  wisdom  and  justice  of  the  existing  rules  of  interna- 
tional law.  It  has  been  seen  that  two  leading  principles 
originally  guided  the  development  of  international  law ; 
onCj  the  claims  of  the  law  of  nature,  and  the  other  the 
claims  of  actual  custom.  There  have  been  apparent  of 
late  years  conscious  energetic  efforts  to  direct  the  course 
of  international  law  by  reference  to  a  fresh  standard, 
that  of  the  common  and  permanent  interests  of  all  the 
nations  concerned.  It  was  the  misfortune  of  inter- 
national law,  for  a  long  period  of  its  history,  to  have  its 
course  directed,  or  rather  perverted,  by  the  influence  of 
the  special  nations  which,  for  the  time,  happened  to  be 
most  potent  by  land  or  by  sea. 

The  influence  of  England  in  manufacturing  the  pre- 
valent doctrines  relative  to  neutral  commerce,  and  of 
France  and  of  the  United  States  in  combating  these 
doctrines,  is  sufficiently  familiar  to  all,  and  is  usually 
alluded  to  by  French  and  German  writers  with  consider- 
able emphasis.  Such  an  influence,  however,  was  far 
more  conspicuous  and  important  while  war  was  the  main 
topic  with  which  international  law  had  to  deal. 

So  soon  as  nations  began,  in  times  of  profound 
peace,  to  make  treaties  with  one  another  from  a  pre- 
sumedly equal  standing-point  and  comprehending  such 
varied  matters  as  the  use  of  harbours,  navigable  rivers 
and  fisheries,  commercial  privileges,  patents,  trade-mark, 
cop5rright,  and  extradition,  it  was  natural  that  exactly 
similar  considerations  should  guide  the  policy  of  each 
contracting  State  as  habitually  guided  the  policy  of  the 
State  in  matters  of  purely  internal  administration.  In 
this  way  a  vast  accession  has  been  made  to  international 
law%  in  respect  of  topics  as  to  which  no  corrupt  aims  or 


INFLUENCE   OF   INTERNATIONAL   LAW   ON   WARS.       845 

indirect  purposes  are  so  much  as  conceivable.  It  may- 
be hoped  too  that,  owing  to  the  increased  publicity  wdiich 
now  attends  all  international  transactions,  and  to  the  grow- 
ing tendency  to  introduce  into  public  life  the  morality- 
demanded  in  private  life,  the  era  of  secret  treaties,  by 
w^hich  two  States  have  been  wont  to  bind  themselves  in  a 
way  designedly  disadvantageous  to  a  third, is  passing  away. 
It  may  thus  be  expected  that  a  habit  of  thought  will 
be  formed  to  the  effect  that — just  as  in  national  law  the 
institutions  of  property  and  contract  have  the  good  of 
the  State  as  much  in  view  as  that  of  individual  jDersons, 
and  just  as  no  private  rights  can  exist  which  are  opposed 
to  the  well-being  of  the  State — so  in  international  law 
every  rule  shall  and  must  be  based  on  the  prospective 
benefit  of  all,  not  on  that  of  a  few  alone,  and,  least  of  all, 
on  that  of  the  most  unscrupulous  and  the  strongest. 

It  remains  to  consider  what  influence  the  modern 
improvements  in  international  law  are  likely  to  have 
in  attaining  their  greatest  and  noblest  end,  the  abolition 
of  war. 

It  may  first  be  noted  that  it  is  not  true  that  the 
main  cause  of  war  is  the  uncertainty  or  backward 
condition  of  international  law.  This  uncertainty  or 
absence  of  law  is  rather  a  consequence  than  a  cause 
of  the  state  of  things  which  leads  to  war.  The  real 
cause  of  modern  European  wars  must  be  sought  in  the 
fact  that  most  or  all  of  the  States  of  Europe  are,  in 
respect  of  their  mutual  relations,  still  sunk  in  that  pri- 
mitive rudeness  which  in  all  societies  of  men  necessarily 
precedes  a  truly  legal  condition.  For  the  attainment  of 
such  a  condition,  equality  in  respect  of  all  the  essential 
elements  of  subsistence  must  exist,  and  must  be  generally 
admitted  to  exist. 

Nov/,  as  to  the  States  of  Europe  at  the  present  day, 


346  THEORETICAL   EQUALITY   OF   STATES. 

tlieir  equality  is  a  pure  fiction,  or  rather  a  sanguine  anti- 
cipation, of  international  lawyers.  The  notion  of  leading 
and  inferior,  great  and  little,  strong  and  weak,  important 
and  insignificant,  States  has  become  so  fixed  in  the 
diplomatic  and  historical,  and  thereby  in  the  public, 
mind,  that  the  legal  notion  of  all  States  being  equal 
is  one  wholly  removed  from  the  experience  of  actual 
life,  and  therefore  is  practically  discarded.  The  past 
struggles  of  these  States,  and  the  prevalence  of  such 
doctrines  as  the  Balance  of  Power,  which  no  doubt  also 
performed  some  useful  service  in  arresting  these  struggles, 
are  largely  accountable  for  this,  and  Europe  cannot  all 
at  once  get  free  from  her  own  past. 

Nor  is  it  only  that  States  are  at  the  present  time 
unequal,  whether  equality  be  tested  by  extent  of 
territory,  by  amount  of  population,  by  wealth,  by 
military  strength,  by  advantages  of  climate,  or  by  num- 
ber and  kind  of  treaty  obligations.  Owing  to  an 
incessant  change  which  is  at  woi-k.  in  the  value  of  each 
of  these  elements,  the  relative  preponderance  and 
significance  of  States  is  constantly  undergoing  alteration. 
It  thus  comes  about  that  each  State,  as  it  emerges  from 
a  condition  of  weakness  to  one  of  strength,  aspires  to 
liberate  itself  from  shackles  imposed  on  it  in  the  hour 
of  depression  or  defeat.  It  demands  the  "revision"  of 
ancient  treaties,  or  fresh  bulwarks  and  securities  against 
possible  invasion  on  the  part  of  powerful  neighbours, 
or  a  public  confession,  in  the  conduct  of  diplomatic 
negociations,  of  its  o^vn  growing  importance. 

Such  aspirations  as  these  can  never  be  noticed  by 
the  best  constructed  systems  of  international  law.  These 
are  too  indefinite,  too  peculiar  to  each  particular  case, 
too  dependent  upon  unaccountable  national  impulses 
and  traditional  modes  of  thought,  to  fall  within  the 
province  of  even  the  most  refined  legal  language.     The 


PEEVALENT   INDISPOSITION   TO   PEACE.  oi7 

aspirations  themselves  may,  in  a  certain  sense,  be  termed 
"natural,"  and  even  irreproachable,  though  the  issue  of 
war  to  which  they  frequently  lead  is  terrible  and  bar- 
barous in  the  extreme.  It  is  probable,  indeed,  that  the 
State  which  in  the  way  above  described  is  endeavouring 
to  pass  beyond  its  existing  bounds  will  either  try  to 
clothe  its  claims  with  the  semblance  of  legal  right,  or  else 
will  provoke  a  quarrel  with  the  State  which  it  desires 
to  encounter,  so  as  to  defy  international  law  itself  to 
find  any  other  solution  but  that  of  war. 

Now  there  are  two  popular  methods  for  the  diminution 
of  war  :  the  one,  that  of  improving  the  substance  as  well 
as  the  form  of  international  law ;  the  other,  that  of 
introducing  a  general  system  of  arbitration,  by  way  of 
"substitute"  (as  it  is  called)  for  war.  It  will  be  well 
to  examine  at  some  length  the  applicability  of  these 
several  methods  to  the  purpose  in  view,  and  to  consider 
whether  any,  and  what,  qualifications  must  be  made  in 
the  mode  of  stating  and  employing  these  methods  in 
order  to  impart  to  them  the  utmost  possible  validity. 

The  weak  side  of  these  methods  is  that  they,  as 
generally  explained,  seem  to  ignore  the  most  prevalent 
causes  of  war,  and  to  overrate  the  actual  disposition  of 
the  European  States  in  favour  of  peace.  It  is  not  true 
that  the  uncertainties  or  imperfect  promulgation  of 
international  law  are  the  main  causes  of  modern  wars, 
and  it  is  equally  untrue  that  the  governments  of  most 
of  the  leading  European  States  are  sincerely  desirous  of 
permanent  peace.  This  constitutes  the  imperfection  of 
the  analogy  between  national  law  as  existing  in  a  civilized 
State,  and  international  law  as  existing  in  an  imperfectly 
civilized  society  of  States.  In  the  case  of  national  law, 
the  prevalence  of  disorder  and  crime  is  a  pretty  sure  index 
of  bad  laws  and  bad  government ;  and  in  every  State  it 
may  be  assumed  that   the  bulk  of  the  population   are 


848  iNDisrosiTioN  to  arbitration^. 

desirous  to  have  tlielr  disputes  decided  by  the  peaceful 
processes  of  courts  of  justice  rather  than  by  the  violence 
of  physical  conflict.  The  bulk  of  the  community  do 
not  wish  to  get  more  than  the  law  gives  them,  though, 
through  the  blindness  of  passion  or  selfishness,  individual 
persons  may  often  be  tempted  to  persuade  themselves 
that  the  law  gives  them  more  than  it  does. 

It  is  true  that  one  reason  of  the  acquiescence  of  the  bulk 
of  a  national  community  in  the  laws  by  which  they  are 
governed  is  a  knowledge  of  the  central  force  which  is 
always  behind  the  laws,  and  which  is  ready  to  support 
them.  Such  a  force  is  at  present  absent  from  international 
law ;  and  it  might  be  said  that  one  commonly  suggested 
mode  of  improving  that  law  is  the  creation  of  such  a 
force.  But  here,  again,  the  same  fallacy  lurks  behind. 
The  States  of  Europe  do  not  at  present  wish  to  submit 
themselves  to  any  central  force,  nor  even  to  create  such 
a  force  out  of  their  own  body  by  the  most  adequate 
representative  system  imaginable. 

Again,  with  respect  to  Arbitration,  this  method, 
invaluable  as  it  is,  at  least  presupposes  a  certain  measure 
of  assent  by  both  parties  who  resort  to  it.  It  implies 
a  belief  on  the  part  of  both  that  either  a  legal  or 
quasi-legal  question  is  involved,  and  that  each  is,  in  his 
own  opinion,  in  the  right ;  or,  in  other  words,  that,  when 
the  state  of  the  facts  is  carefully  examined,  and  the  law 
or  equitable  principle  accurately  expounded,  each  hopes 
and  thinks  the  result  will  be  in  his  own  favour.  A 
bona  fide  belief  in  the  justice  of  one's  own  cause  is  an 
essential  element  in  a  successful  arbitration.  If  such  a 
belief  is  absent,  there  can  be  no  readiness  to  obey  the 
award,  and  the  same  causes  of  acrimony  exist  after  the 
award  as  before  it. 

In  national  law,  indeed,  an  award  may  be  converted 
into    what   is   called   a   "rule   of  court,"  that  is,   may 


EEAL   OBSTACLES   TO   ARBITRATION.  819 

have  impressed  upon  it  all  the  validity  of  a  judicial 
sentence.  This  finally  ends  litigation,  and  the  whole 
process  is  only  a  special  method  of  conducting  it.  But 
the  existence  of  a  judicial  and  executive  machinery,  as 
a  prop  to  arbitration,  is  not  presupposed  in  the  notion  of 
arbitration  itself;  and  the  demand  for  such  machinery,  in 
the  mouths  of  those  who  most  loudly  call  for  an  universal 
system  of  international  arbitration,  is^quite  distinguish- 
able from  the  demand  for  this  last.  It  is  here  fully 
recognized  that  the  proposal  for  the  extension  of  the 
practice  of  arbitration  is,  at  present,  a  far  more  moderate 
and  hopeful  one  than  the  suggested  creation  of  a 
central  authority  prepared  to  carry  out,  in  the  name  of 
all  the  States  of  Europe,  the  sentence  of  a  court  of 
arbitration  against  any  one  of  them. 

If  it  be  true,  then,  as  has  been  indicated  above,  that 
the  most  fruitful  causes  of  war  are  not  to  be  sought  in 
the  condition  of  international  law,  but  in  the  condition, 
relations,  and  temperament  of  the  European  States,  the 
field  for  the  application  of  arbitration  might  seem  to  be 
a  comparatively  narrow  one.  The  alleged  limitations  to 
the  practice  of  arbitration  may  be  expressed  in  the 
following  words  of  Professor  Mountague  Bernard  in  a 
letter  to  the  Times  of  October  18th,  1873  : — "Arbitration 
"  is  an  expedient  of  the  highest  value  for  terminating 
"international  controversies;  but  it  is  not  applicable  to 
"all  cases  or  under  all  circumstances,  and  the  cases  and 
"  circumstances  to  which  it  is  not  applicable  do  not  admit 
"  of  precise  definition.  Arbitration,  therefore,  must  of 
"necessity  be  voluntary;  and  though  it  may  sometimes 
"  be  a  moral  duty  to  resort  to  it,  cannot  be  commanded  in 
"  any  form  by  what  is  called  the  positive  law  of  nations." 

The  explanation  of  this  passage,  no  doubt,  is  that  when 
a  State  is  bent  upon  doing  what,  on  the  simplest  reading 
of  the  most  elementary  principles  of  international  law,  is 


350        KEAL  OBSTACLES  TO  ARBITRATION. 

an  act  of  injustice  or  aggression,  neither  the  trespassing 
State  will,  nor  the  State  trespassed  upon  ought  to,  refer 
the  question  to  the  decision  of  third  parties.  It  may  be 
maintained  in  defence  of  this  position  that,  in  the  existing 
inequality  of  European  States,  no  tribunal  can  be  consti- 
tuted which  shall  be  possessed  of  the  authority,  wisdom, 
and  moral  character  needed  to  decide  upon  points  which,  in 
the  view  of  a  Stat^  suffering  from  aggression,  seem  to  touch 
its  independence  and  national  existence ;  and  that,  even 
could  such  a  tribunal  be  found,  no  State  would  ever  believe 
in  the  moral  competency  of  the  tribunal  sufficiently  to 
entrust  to  it  a  decision  upon  a  question  involving  issues 
so  great. 

The  difficulty  may  be  expressed  by  saying  that  arbitra- 
tion seems  to  be  the  only  means  of  perfecting  relations 
of  order,  equity,  and  mutual  confidence,  betAveen  States ; 
the  pre-existence,  however,  of  which  very  relations  must 
be  treated  as  a  condition  precedent  to  the  universal 
application  of  arbitiation.  Looking  at  the  present  state 
of  things,  it  is  not  at  once  apparent  how  desio-nino- 
and  ambitious  States  can  be  made  contented,  reveno-eful 
States  made  oblivious,  timid  States  made  confident,  by 
the  mere  magic  of  an  appeal  to  the  duty  of  referring  to 
arbitration  legal  or  political  complications  which  they  are 
well  aware  do  not  exist.  These  complications  are,  as 
often  as  not,  gossamer  cobwebs  spun  in  order  to  conceal 
the  hideous  spirit  of  avarice,,  or  passion,  or  national  pride 
which  dominates  within.  The  most  competent  tiibunal 
imaginable,  so  far  from  being  welcomed,  would  only  be 
shunned  in  proportion  to  its  competency  and  its  purity; 
while  an  award  which  adjudged  a  sentence  of  extinction 
(or  what  might  be  treated  as  such)  against  the  life  of  a 
State  would  be  simply  repudiated. 

It  woidd  be  well  if  all  lovers  and  promoters  of  peace 
were  seriously  to  lay  to  heart  these  considerations,  and 


MODES  OF  PEE  VENTING  WARS.  851 

not  to  underrate,  tliroUQ-li  iofnorance  or  thouo-htlessness,  the 
hardness  of  the  task  to  which  they  have  devoted  them- 
selves. There  is  no  doubt  that  both  those  who  look 
upon  the  diiSculties  in  the  j)ath  as  almost  insuperable, 
and  those  who  all  but  ignore  them,  have  a  common  end 
in  view ;  and,  if  they  would  only  learn  of  one  another, 
patiently  and  respectfully,  would  find  themselves  not  so 
far  removed  from  each  other  as  they  suppose.  In  the 
hope  of  contributing  somewhat  to  bring  about  such  a 
reconciliation,  the  following  remarks  are  offered. 

If  it  be  true  that  wars  mostly  arise,  as  has  above  been 
explained,  from  what  has  been  called  the  existing 
inequality  of  States,  it  is  obvious  that  every  political  or 
social  measure  that  tends  to  bring  about  permanent 
equality  tends,  to  that  extent,  to  reduce  the  probabilities  of 
war.  Hence,  even  where  it  may  be  impossible  to  equalize 
physical  areas,  or  numerical  estimates  of  population,  or 
even  climatic  advantages  and  national  opportunities,  still 
it  may  be  of  great  use  to  propagate  doctrines  which 
insist  on  that  equality  of  contribution  and  on  that  equality 
of  moral  and  spiritual  value  which,  in  instituting  a  com- 
parison between  States,  the  population  of  each  may  pro- 
perly claim  for  itself. 

Every  influence  which  increases  the  economical  depen- 
dence of  States  upon  each  other,  every  barrier  which  is 
removed  from  free  commercial  intercourse  and  free 
locomotion  and  communication,  not  only  makes  w^ar  more 
and  more  opposed  to  the  obvious  interest  of  all  classes  of 
persons  in  every  State,  but  brings  home  more  and  more 
distinctly  the  fact  that  even  States  apparently  the 
weakest  and  smallest  have  a  function  to  perform  in  the 
great  society  of  States,  which,  in  dignity  and  importance, 
may  vie  wdth  that  performed  by  the  most  pretentious. 
Every  measure  that  gives  political  enfranchisement  and 
personal  liberty  to  large  classes  of  the  population  must 


352  MODES  OF   PREVEXTIXG   WARS. 

tend  to  the  disuse  of  the  enormous  European  armaments 
which  absorb  so  much  of  the  wealth  of  all  States, 
and  which,  by  keeping  up  a  fictitious  and  delusive 
inequality  among  States,  as  well  as  by  nvirsing  a 
childish  passion  for  military  "  glory,"  tends  to  a  like 
extent  to  promote  war.  Again,  every  movement  that 
unites  together  the  mass  of  the  population  of  different 
countries,  by  teaching  them  what  is  their  common 
interest,  by  removing  traditional  prejudices  and  an- 
tipathies, and  by  bringing  them,  through  locomotion  and 
mutual  interchange  of  labour,  face  to  face  with  each  other, 
must  tend  to  diminish  the  possibility  of  war. 

"WHiilethe  attention,  however,  continues  fixed  upon  all 
these  more  general  methods  of  rendering  the  nations  of 
Europe  unused  to  war,  there  is  no  doubt  that  the  im- 
provement and  codification  of  international  law,  and  the 
assimilation  of  the  national  laws  of  the  several  States, 
must  tend  largely  to  prevent  the  chance  of,  or  to  diminish 
the  excuses  for,  armed  conflict. 

Then,  too,  a  resort  to  arbitration  cannot  be  too 
earnestly  recommended  nor  too  perseveiingly  pressed. 
It  is  only  through  a  change  in  the  public  opinion  and 
feeling  of  the  several  States  that  a  condition  of  legal 
relationship  can  succeed  to  the  existing  condition  of 
rivalry  and  violence.  But  this  public  feeling  itself  must 
be  largely  influenced  by  familiarity  with  legal  procedure 
in  the  place  of  the  dread  familiarity  it  already  has  wdth 
the  struggles  of  war.  The  new  familiarity  will  be  largely 
promoted  by  supporting,  in  every  possible  w^ay,  the 
practice  of  arbitration,  and  hy  never  admitting  it  to  be  an 
impossible  solution  of  a  difiiculty  till  after  it  has  proved 
to  be  such.  The  way  in  which  this  familiarity  operates 
will  be  described  lower  down. 

There  are  two  important  avenues  to  the  improvement 
of  international  law.    One  is  that  of  imparting  increased 


OBSTACLES   TO   CODIFICATIOX,  353 

certainty  and  publicity  to  the  rules  which  compose  it ; 
the  other  is  that  of  recommending  for  adoption  by 
States  new  rules,  by  way  of  supplementing  or  modifying 
the  old  ones ;  such  new  rules  to  be  ostensibly  founded  on 
principles  of  general  expediency  and  abstract  justice. 
There  are  great  and  obvious  difficulties  in  the  way  of  the 
success  of  each  of  these  measures.  As  to  the  first  one, 
any  one  acquainted  with  the  character  of  existing  inter- 
national law,  and  with  the  dubious  and  contracted  nature 
of  the  evidence  on  which  the  validity  of  even  the  best 
approved  rules  rests,  will  recognize  at  once  that  the 
attempt  to  secure  general  acquiescence  in  the  mode  of 
stating  the  whole  mass  of  rules  must  involve  obstacles 
all  but,  if  not  qiiite,  insuperable.  It  must  be  remembered 
that  the  republication  of  even  a  national  system  of  law, 
where  a  large  part  of  it  is  comprised  in  tolerably  explicit 
statutes  and  the  rest  in  the  reports  of  authoritatively 
decided  cases  or  in  the  accredited  comments  of  comj^etent 
writers  on  a  clearly  written  text,  is  a  task  from  which, 
on  the  ground  of  the  hazard  attending  the  operation, 
some  of  the  ablest  minds  have  universally  been  known  to 
shrink. 

But  international  law,  in  spite  of  the  scarcity  and 
thinness  of  its  materials,  when  contrasted  with  a  fully 
developed  system  of  national  law,  must,  from  the  nature 
of  the  case,  far  excel  in  ambiguity  and  indefiniteness  the 
most  tortuously  grown  system  of  law  in  any  civilized 
State.  The  absence  of  any  legislative  authority,  and  of 
courts  of  justice  purporting  to  act  in  the  name  of  such 
an  authority,  throws  all  the  responsibility  of  ascertaining 
the  rules  (such  as  they  are)  of  international  law  on  the 
private  students  and  investigators  in  each  particular 
country.  The  materials  which  these  private  persons 
possess  for  their  researches,  instead  of  being  explicit 
statutes   or   decisions  by  publicly  authorized  judges  or 


o54f  SLOW   GROWTH   OF  LEGAL   EELATIONSliirS. 

commentators,  are  composed  of  notliing  more  certain  than 
the  frequently  repeated  language  of  treaties  between 
particular  States,  the  utterances  of  judges  in  the  Prize 
Courts  instituted  during  particular  wars,  the  varying  and 
conflicting  ordinances  and  regulations  of  particular 
sovereigns,  the  forced  logic  of  individual  diplomatists  and 
popular  or  parliamentary  orators,  and  the  wire-spun 
refinements  of  the  scholastic  closet  student. 

This  statement  of  the  difficulties  which  beset  any 
one  who  attempts  to  republish  in  a  systematized  form 
the  rules  and  principles  of  the  international  law  of  Europe 
is  not  made  in  a  sj)irit  of  scepticism,  as  intimating  that 
the  existence  of  such  law  is  a  mere  illusion.  In  spite  of  the 
indefiniteness  and  obscurity  of  the  quarters  from  which  a 
knowledge  of  the  law  has  to  be  drawn,  it  cannot  be 
denied  that  true  legal  relationships  between  the  States  of 
Europe  have,  for  the  last  seven  or  eight  centuries,  been 
gradually  forming  themselves  ;  and  the  rules  which  have 
sprung  from  and  expressed  those  relationships  have  been 
more  and  more  exactly  adapted  to  the  requirements  of 
general  convenience  and  justice. 

The  progress  has  undoubtedly  been  all  the  slow^er,  and 
occasional  retrogressions  the  more  frequent,  from  the 
mistiness  of  the  path  through  which  the  law  has  been 
compelled  to  march.  Each  State,  as  it  has  become  over- 
weeningly  powerful  and  unscrupulous,  has  endeavoured 
to  wrest  the  existing  rules  of  intei'national  law,  by 
interpretation  or  open  amendment,  into  conformity  with 
what  its  own  interests  immediately  demanded.  A  strong 
State  has  imposed  upon  a  weak  one  in  the  hour  of  defeat 
the  necessity  of  confessing  by  treaty  the  existence  of 
some  one-sided  and  spurious  rules ;  while  the  fact  of  the 
treaty  itself  has,  in  no  long  time,  become  a  main  evidence 
of  the  universal  validity  of  the  new  rules.  The  mis- 
fortune has  been,  too,  that  States   have  generally  been 


REALITY   OF  INTEKXATIONAL   LAW.  855 

supported  in  their  iniquity  by  the  consentient  voice  of 
text-book  writers  among  their  own  citizens.  Even  at 
the  present  day,  in  treating  of  the  subject  historically, 
this  spurious  patriotism  is  too  apt  to  manifest  itself, 
and  the  writers  in  each  country  seem  often  enough  as 
though  they  were  the  paid  apologists  of  the  acts  of 
their  own  State  in  every  age. 

The  above  described  abuses  of  international  law  by 
ascendant  States  may  be  taken  as,  in  some  way,  a  tribute 
to  the  actuality  and  enei-gy  of  that  law.  It  is  seldom 
that  States,  even  in  the  flush  of  victory,  have  daied 
ostentatiously  to  offend  against  a  generally  admitted 
principle  of  international  law.  The  methods  of  evading 
the  operation  of  the  principle  have  been  either  to  deny  the 
fact  of  the  existence  of  such  a  principle ;  or  to  deny  its 
applicability  under  the  special  circumstances  of  the  case  ; 
or  to  wrest  the  language  in  which  it  is  customarily 
expressed  in  such  a  way  as  to  alter  its  meaning ;  or  by 
a  sort  of  play  at  legislation  to  abrogate  it  by  a  formal 
convention  entered  into  with  States  which  are  momen- 
tarily dependent ;  or  to  obtain  from  professedly  learned 
citizens  of  its  own  and  under  its  own  influence  direct 
or  indirect  scientific  opinion  in  derogation  of  the  true 
compass  and  import  of  the  principle. 

If  this  view  be  historically  correct,  it  both  establishes 
the  supreme  value  of  immutable  principles  of  interna- 
tional law,  and  indicates  the  sort  of  machinery  which 
may  be  advantageously  called  into  being  for  the  founda- 
tion of  such  principles. 

It  has  been  seen  that  the  main  obstacle  to  the 
creation  of  a  definite  and  settled  system  of  international 
law  has  been  the  isolation  and  narrow  patriotism  of  the 
learned  men  who  have  chiefly  helped  to  develop  it. 
This  obstacle  can  only  be  overcome  by  promoting  a  closer 
sympathy  between  all    the    students  and  professors   of 


356  ORGANIZATION  OF  PROFESSORS. 

international  law  in  diffe  ent  States.  Signs  of  the 
growth  of  such  a  sympathy  are  akeady  apparent;  and 
one  and  another  institution  has  been  founded  for 
the  purpose  of  giving  organized  completeness  to  the 
movement.  If  once  all  the  scientific  students  of  inter- 
national law  throughout  Europe  come  to  be  of  one  mind 
as  to  the  principles  and  leading  i-ules  of  which  that  law 
is  composed,  there  will  no  longer  be  any  hope  for  an  am- 
bitious and  reckless  State  in  endeavouring  to  Avrest  the 
interpretation  of  the  rules  of  international  law  in  its  own 
favour. 

It  is  none  the  less  to  be  feared,  on  the  grounds  above 
described,  that  for  a  long  time  to  come  States  will  now 
and  again  endeavour  to  burst  their  bounds  and  to  assail 
the  independence  of  their  neighbours.  But  when  once  the 
principles  and  rules  of  international  law  shall  have  been 
reduced  to  definiteness  and  certainty,  and  the  leading- 
students  of  that  law  in  all  the  several  States  shall  have 
pledged  themselves  to  support  one  interpretation  and  one 
only,  every  outrage  committed  by  any  State  will  stand  out 
in  plain  colours  to  be  condemned,  and  not  countenanced, 
by  the  international  law  of  the  world.  The  influence  of 
such  a  judgment  will  be  all  the  greater,  inasmuch  as,  by 
the  same  process  by  which  international  law  is  freed  from 
the  distortions  introduced  by  particular  States,  it  will 
gain  infinitely  in  authority  and  moral  reputation.  It 
mil  stand  forth,  as  gradually  becoming,  what  in  its  own 
nature  it  essentially  is,  an  embodiment  of  the  purest  reason 
and  the  loftiest  morality,  and  as  having  for  its  sole  end 
such  an  adjustment  of  the  relations  of  the  several  States 
of  the  world  as  may  best  enable  each  to  contribute  its 
share  to  the  welfare  and  moral  advancement  of  all. 

It  will  thus  be  seen  what  place  the  further  work  of 
suggesting  amendments  and  additions  must  occupy  in  tlie 
general  task  of  completing  the   development   of  inter- 


PKOJECTS  OF   CODIFICATION.  o57 

national  law.  The  fii-st  object  to  be  attained  (as  will  be 
seen)  is  to  provide  for  the  organization  of  a  body  of 
persons  who  shall  form  such  a  scientific  opinion  on  the 
existing  state  of  the  law  as  shall  command  universal 
respect.  There  is  no  doubt  that  tlie  mere  process  of  pre- 
senting the  scattered  and  much  disputed  rules  of  inter- 
national law  in  a  more  compact  and  definite  shape  must 
of  necessity  compel  a  certain  amount  of  alteration  in 
those  rules.  The  very  filling  in  of  gaps  which  have  been 
left  open  through  the  accidental  facts  of  European  history 
must  imply  a  certain  measure  of  what  is,  practically, 
legislation.  But  the  most  that  is  here  contemplated,  as 
a  sort  of  accident  in  the  course  of  republishing  a  diftuse 
system  of  law  in  a  condensed  form,  is  very  far  removed 
from  what  some  mean  by  the  project  of  constructing  an 
European  code. 

According  to  these,  a  code  is  to  be  at  once  devised  of 
the  utmost  possible  completeness,  not  only  gathering  up 
all  the  principles  and  rules  of  international  law  which 
possess  a  fair  amount  of  authority,  but  also  extending  to 
all  the  rules  of  international  intercourse  Avhich,  in  view 
of  the  social  and  commercial  relations  likely  progi'essively 
to  develop  among  the  citizens  of  the  several  States,  it 
may  ever  become  desirable  or  indispensible  to  enact. 
Such  matters  are  those  which,  at  present,  so  far  as  they 
are  made  subject-matters  of  law  at  all,  are  provided  for 
by  special  treaties  between  particular  States.  Of  this 
kind  are,  for  instance,  all  the  topics  of  what  is  sometimes 
called  "  private  international  law,"  and  all  the  rules  apper- 
taining to  the  navigation  of  the  high  seas,  to  copyi-ight, 
to  trade-marks,  to  patents,  and  to  extradition. 

With  respect  to  some  of  these  matters,  there  is  no 
doubt  that  uniformity  of  practice  among  all  States  in  the 
conduct  of  their  mutual  relations  must  be  of  inestimable 
value,  and  might  well  form  the  subject  of  a  general  code 


SoS  SCHEMES  OF  ARBITRATION. 

to  whicli  each  State  should  be  invited  to  signify  its 
adherence.  But,  however  numerous  the  topics  compre- 
hended in  such  a  code,  there  must  always  be  some  out- 
lying topics  which,  in  view  of  the  .peculiar  situation  and 
circumstances  of  particular  States,  must  continue  to  be 
more  appropriately  dealt  with  in  private  treaties.  The 
general  adoption,  indeed,  of  so  comprehensive  a  code  as 
that  here  alluded  to,  cannot  be  hoped  for  till  a  greater 
amount  of  actual  equality  is  brought  about  among  the 
States  of  Europe,  though  the  perfecting  of  such  an 
equality  would  be  largely  accomplished  by  the  use  of 
such  a  code. 

Whatever  be  the  prospects  of  such  a  code,  however, 
the  value  of  sketching  it  out  and  of  constantly  holding 
it  forth  as  an  ideal  to  be  attained  sooner  or  later  cannot 
but  exercise  an  important  influence  on  the  formation  of 
public  opinion,  and  thereby  on  that  of  the  members  of 
representative  assemblies  to  which  statesmen  are  finally 
accountable.  In  the  mean  time  the  earlier,  and  more 
modest,  as  well  as  more  purely  scientific,  work  is  of  the 
most  immediate  promise,  and  cannot  afibrd  to  be  delayed. 

This  whole  discussion  of  the  means  of  improving  inter- 
national law  is  closely  related  to  that  of  the  advantages 
or  possibility  of  introducing  a  general  system  of  arbitra- 
tion. The  difiiculties  in  the  way  'of  making  such  a 
system  obligatory  have  been  clearly  indicated.  But, 
however  menacing  these  difficulties,  it  is  to  be  remembered 
that  the  principal  change  to  be  introduced  into  the  society 
of  States  is  to  substitute  a  notion  of  legal  relationship, 
of  legal  right,  legal  duty,  legal  accountability,  and  of 
legal  penalty,  in  the  stead  of  that  of  spasmodic  and  self- 
determined  violence.  So  long  as  statesmen,  on  the 
slightest  provocation,  talk  of  the  "  honour  "  of  their  State 
being  wounded,  and  not  of  a  legal  right  being  infringed 
or  threatened,  so  long  the  hope  of  permanent  peace  is 


SCHEMES   OF  ARBITRATION'.  850 

vain.  It  oaglit,  then,  to  be  the  aim  of  every  lover  of 
peace  to  secure  that  each  apparent  ground  for  quarrel  is 
treated  as  having  a  relation  to  a  legal  right  and  duty. 
To  improve  and  propagate  a  knowledge  of  international 
law  is  one  great  part  of  the  work  to  be  done;  to  lose 
no  occasion  to  recommend  arbitration,  and  to  devise 
expedients  for  facilitating  the  practice  of  arbitration,  is 
another  and  equally  important  one. 


CHAPTER  XIIT. 

CODIFICATION". 

Whex  it  is  remembered  by  what  tedious  and  apparently 
accidental  jn'oeesses  every  system  of  national  law  comes 
into  being,  it  can  scarcely  be  wondered  at  that  an  epoch 
sooner  or  later  arrives  in  the  history  of  every  State,  at 
which  a  loud  cry  is  heard  for  simplification  and  republi- 
cation of  the  law.  It  has  been  seen  that  the  mass  of  the 
laAvs  in  every  country  spring  up,  as  it  were,  spontaneously, 
being  necessary  links  and  bonds  for  the  purpose  of  hold- 
ing together,  with  the  cohesiveness  which  is  indispensable, 
the  several  groups  out  of  which  the  State  is  constituted, 
and  for  maintaining  the  unity  and  rigidity  of  the  indi- 
vidual groups  themselves.  These  essential  laws  cannot 
be  accurately  described  as  "  customs,"  this  term  signifjdng 
either  what  is  merely  an  occasional  and  irregular  growth 
upon  a  pre-existing  body  of  law,  or  else  the  eccentric  varia- 
tions of  usage  which,  in  a  partially  civilized  society, 
precede  the  existence  of  the  State,  and  of  law  in  the  true 
sense.  Nevertheless,  it  is  these  primitive  customs,  in  the 
latter  sense  of  the  term,  which  are  the  foundation  of  true 
law,  and  which  contain  in  themselves  the  germs  of  all 
the  most  important  classes  of  law.  Thus,  as  was  seen  in 
a  former  chapter,  the  family,  government,  property,  and 
contract,  being  at  the  first  only  obscurely  hinted  at  in  the 
desultory  practices. of  a  people,  become  gradually  marked 


CUSTOMARY   LAW.  361 

out  as  subject-matter  for  strict  regulation  by  definite  rules ; 
and  the  relations  of  these  several  topics  to  one  another, 
and  to  the  State  as  a  whole,  become  more  and  more  cleaily 
ascertained. 

This  work  was  accomplished  by  what  cannot  be 
designated  in  more  intelligible  language  than  that  which 
speaks  of  it  as  a  spontaneous  moral  impetus  of  the  people 
themselves.  No  doubt  this  spontaneity  itself  is  deter- 
mined by  a  number  of  general  causes  which  operate 
in  some  places  and  not  in  others,  and  at  some  times 
and  not  at  others.  It  is  also  true,  that  in  the  course 
of  the  development  of  a  State,  it  usually  happens 
that  certain  more  special  causes  concur  to  give  energy 
and  determinateness  to  the  legislation  of  the  State, 
Such  causes  are  the  wide  prevalence  of  religious  beliefs, 
together  with  the  concentrated  influence  of  a  priestly 
hierarchy  resulting  therefrom ;  and  the  facts  of  military 
domination  and  military  discipline,  or  of  peculiar  institu- 
tions, such  as  the  feudal  system  and  chivalry. 

The  result  of  the  actual  process  by  which  a  system 
of  law  is  thus  gradually  built  up  is  that,  however  much 
accustomed  to  it  the  people  may  have  become,  and, 
therefore,  however  little  its  disadvantages  are  actually 
experienced,  yet  the  obscure  and  involved  condition 
of  the  laws  presents  at  once  a  dangerous  opening  for 
governmental  abuses  of  all  sorts,  and  a  steady  opposition 
to  the  invasion  of  reform.  These  evils  are  largely 
exaggerated  in  course  of  time  by  the  inordinate  growth 
of  law  ;  brought  about  partly  through  the  mere  process  of 
administering  it  in  courts  of  justice,  and  partly  through 
the  direct  and  spasmodic  interposition  of  the  legislature. 
The  legislature,  in  enacting  statutes,  and  the  courts  of 
justice  in  framing  decisions  on  the  state  of  the  law,  as 
occasion  needs,  having  no  formal  standard  or  type  to 
guide   themselves   by,  severally  proceed   in   their   own 


oG2  MR.  MILL   ON    ENGLISH   LAW. 

independent  paths,  gradually  creating  notions  and  rules 
of  interpretation  solely  for  their  own  use,  and  having  no 
relation  to  the  whole  system  of  law,  which  indeed  cannot 
be  said  to  exist  in  an  organic  shape. 

This  condition  of  things  is  not  peculiar  to  any  one 
country,  but  is  an  universal  consequence  of  the  mode-  in 
which  civilization  progresses.  It  is  only  less  conspicuous 
in  those  countries  in  which  the  spontaneous  development 
of  law  has,  at  an  earlier  stage,  been  interfered  with 
through  the  effects  either  of  internal  revolutions,  accom- 
panied by  violent  changes  of  government,  or  of  foreign 
conquest.  It  is  in  countries  such  as  England,  which  has 
been  exempt  from  or  has  resisted  both  these  interfering 
influences,  and  which  has  progressed  a  long  way  in  the 
path  of  civilization,  that  the  anarchical  condition  of  the 
legal  system,  as  above  described,  is  seen  in  its  most 
characteristic  phase.  The  following  quotation  from 
Mr.  John  Stuart  Mill's  well-known  essay  on  Bentham, 
republished  in  his  "Dissertations  and  Discussions," 
vol.  i.  p.  368,  will  exactly  illustrate  the  general  phe- 
nomena here  alluded  to : — 

"The  laws  which  were  suitable  to  the  first  of  these 
"states  of  society  could  have  no  manner  of  relation  to 
"  the  circumstances  of  the  second ;  which  could  not  even 
"have  come  into  existence  unless  something  had  been 
"done  to  adapt  those  laws  to  it.  But  the  adaptation 
"  was  not  the  result  of  thought  and  design ;  it  arose,  not 
"  from  any  comprehensive  consideration  of  the  new  state 
"of  society  and  its  exigencies.  What  was  done,  was 
"done  by  a  struggle  of  centuries  between  the  old  bar- 
"  barism  and  the  new  civilization ;  between  the  feudal 
"aristocracy  of  conquerors,  holding  fast  to  the  rude 
"  system  they  had  established,  and  the  conquered  effect- 
"ing  their  emancipation.  The  last  was  the  growing 
•' power,  but  was  never  strong  enough  to  brtak  its  bonds. 


ME.  MILL   ON   ENGLISH   LAW.  8G3 

"though,  evev  and  anon,  some  weak  point  gave  way. 
'•'  Hence,  the  law  came  to  be  like  the  costume  of  a  full- 
"  gi'own  man,  who  had  never  put  off  the  clothes  made  for 
"  him  when  he  first  went  school  Band  after  band  had 
"been  burst,  and,  as  the  rent  widened,  then,  without 
"  removing  anything  except  what  might  drop  off  of  itself, 
"  the  hole  was  darned,  or  patches  of  fresh  law  were  bought 
"  from  the  nearest  shop  and  stuck  on.  Hence  all  ages  of 
"  English  history  have  given  one  another  rendezvous  in 
"English  law;  their  several  products  may  be  seen  all 
"  together,  not  interfused,  but  heaped  one  upon  another, 
"  as  many  different  ages  of  the  earth  may  be  read  in  some 
"perpendicular  section  of  its  surface, — the  deposits  of 
"each  successive  period,  not  substituted,  but  super-. 
"  imposed  on  those  of  the  preceding.  And  in  the  world  of 
"  law,  no  less  than  in  the  physical  world,  every  com- 
"  motion  and  conflict  of  the  elements  has  left  its  mark 
"  behind,  in  some  breach  or  irregularity  of  the  strata  ; 
"  every  struggle  which  ever  rent  the  bosom  of  society 
"  is  apparent  in  the  disjointed  condition  of  the  part  of 
"  the  field  of  law  which  covers  the  spot ;  nay,  the  very 
"traps  and  pitfalls,  which  one  contending  party  set  for 
"  another,  are  still  standing,  and  the  teeth,  not  of  hyenas 
"only,  but  of  foxes  and  all  cunning  animals,  are  im- 
"  printed  on  the  curious  remains  found  in  these  ante- 
"diluvian  caves." 

This  account  is  probably  less  true  of  all  those  coun- 
tries in  which  the  Roman  law  proper,  the  "  codes  of  the 
barbarians,"  and  the  canon  law,  have  had  an  enduring- 
vitality  ;  though,  as  to  such  countries,  and  pre-eminently 
France  and  Germany,  other  causes,  such  as  the  aggrega- 
tion under  one  dominion  of  a  number  of  provinces,  each 
with  its  own  system  and  customary  law,  have  tended 
to  produce  a  chaos  different  in  kind  from,  but  equal  in 
deo-ree  to,  that  found  in  EnoKsh  law. 


SG4  EVILS   TO   BE  REMEDIED. 

Admitting  then  that  a  time  must  arrive  when  a  State 
becomes  conscious  of  the  inadequacy  in  form,  as  weiJ 
as  in  substance,  of  its  own  laws,  the  question  is 
presented  as  to  what  is  the  best  remedy  to  provide. 
It  is  needless  to  premise  that  the  remedy  required  may 
be  different  for  different  countries,  and  at  different 
epochs ;  and,  therefore,  in  laying  down  the  most  general 
propositions  on  the  subject,  openings  must  always  be 
left  for  the  qualifications  which  the  circumstances  of 
particular  countries  may  call  for.  Be  it  remembered, 
at  the  outset,  that  the  exact  evils  to  be  provided  against 
are  (1)  the  actual  uncertainty  in  the  law,  owing  to  the 
obscurity,  indefiniteness,  and  conflict  of  the  authorities 
from  which  a  knowledge  of  it  is  to  be  derived ;  (2)  the 
amount  of  labour  and  time  consumed  both  by  judges 
and  private  legal  practitioners  in  the  process  of  ascertain- 
ing the  state  of  the  law,  either  for  the  purpose  of  giving 
final  judgment,  or  of  merely  rendering  professional  assist- 
ance ;  (3)  the  want  of  publicity  in  the  law,  whereby  the 
most  serious  obstacles  are  placed  in  the  way  of  all 
persons  in  the  community  coming  by  a  knowledge  of 
their  rights  and  duties;  (4)  the  want  of  acquaintance 
with,  or  of  opportunity  of  informing  himself  upon,  the 
leading  doctrines  of  the  law,  which  must  ceaselessly 
hamper  the  legislator  in  his  effort  to  amend  any  special 
branch  of  the  law. 

These  four  classes  of  evils,  which  are  entirely  in- 
dependent of  one  another,  and  yet  all  of  the  most  serious 
importance,  must  all  be  kept  in  view  in  any  attempted 
remedy  for  the  unsystematic  character  of  a  body  of 
law.  No  remedy,  or  mode  of  apptying  a  remedy,  which 
leaves  one  of  these  evils  wholly  out  of  account,  however 
effectually  it  deals  with  the  rest,  can  be  deemed  suffi- 
cient. It  may  be  better  even  to  Avait  longer  for  a  more 
complete  and    adequate  remedy   than   to   close   hastily 


MEANINGS  OF   TERM  "CODIFICATION."  365 

with  a  more  immediate  remedy  which  only  cures  a  part 
of  the  disease,  and  puts  the  attainment  of  perfect  health 
at  a  greater  distance  than  ever. 

Now,  the  remedy  which  is  in  everybody's  mouth  for 
the  evils  above  enumerated,  and  for  all  that  disorderly 
condition  of  a  nation's  laws  which  results  in  those  dis- 
tinct evils,  is  "  codification."  But,  inasmuch  as  this 
term  is  made  to  mean  something  very  different  by  each 
person  who  uses  it,  the  recommendation  itself  is  not  of 
very  much  service  until  the  nature  of  the  codification 
recommended  is  made  plain.  The  following  meanings 
(among  others)  are  given  to  the  term  codification  by 
different  classes  of  reasoners.  Some  mean  by  it  the 
mere  conversion  of  the  whole  unwritten  law  of  a  country 
into  written  law,  in  such  a  way  that  no  secret  or 
inaccessible  principles  of  law  may  hereafter  exist,  and 
that  all  persons  in  the  country  may  have  an  equal 
opportunity  with  judges  and  lawyers  of  acquainting 
themselves  with  the  state  of  the  law.  In  this  mean- 
ing of  the  term,  publicity  and  explicitness  are  the 
essentials  rather  than  unity  and  correct  classification. 
This  must  have  been  the  sense  in  the  mind  of  those  who 
procured  the  publication  of  those  ancient  codes  of  which 
Sir  H.  S.  Maine  writes  in  his  "Ancient  Law,"  p.  1  ^ : — "  In 
"  Greece,  in  Italy,  on  the  Hellenized  sea-board  of 
"Western  Asia,  these  codes  all  made  their  appearance 
"  at  periods  much  the  same  everywhere ;  not,  I  mean, 
"  at  periods  identical  in  point  of  time,  but  similar  in 
"  point  of  the  relative  progress  of  the  community. 
"  Everywhere,  in  the  countries  I  have  named,  laws 
"  engraven  on  tablets  and  published  to  the  people  take 
"  the  place  of  usages  deposited  with  the.  recollection 
"of  a  privileged  oligarchy.  It  must  not  for  a  moment 
"  be  supposed  that  the  refined  considerations  now  urged 
"  in  favour  of  v/hat  is  called  codification  had  any  part 


S6Q  SIR  H.  S.  MAINE   ON   ANCIENT   CODES. 

"  or  place  in  the  change  I  have  described.  The  ancient 
"  codes  were  doubtless  originally  suggested  by  the  dis- 
"  coveiy  and  diffusion  of  the  art  of  writing.  It  is  true 
"  that  the  aristocracies  seem  to  have  abused  their 
"monopoly  of  legal  knowledge;  and  at  aU  events  their 
"  exclusive  possession  of  the  law  was  a  formidable 
"  impediment  to  the  success  of  those  popular  movements 
"  which  began  to  be  universal  in  the  western  world. 
"But,  though  democratic  sentiment  may  have  added  to 
"  their  popularity,  the  codes  were  certainl}^  in  the  main 
"  a  direct  result  of  the  invention  of  writing.  Inscribed 
"  tablets  were  seen  to  be  a  better  depositor}^  of  law,  and 
"  a  better  security  for  its  accurate  preservation,  than  the 
"  memory  of  a  number  of  persons,  however  strengthened 
"by  political  exercise."  It  would  seem  that  even  to 
Bentham's  mind,  organizer  as  he  was,  the  main  service 
of  a  code  seemed  to  be  that  of  arresting  the  progress  of 
"judge-made  law,"  and  getting  finally  rid  of  the  notion 
that  there  are  any  recondite  principles  of  law  tradi- 
tionally handed  down  from  one  generation  of  judges  to 
another,  and  not  accessible  to  the  general  public. 

Those  who  use  the  term  codification,  in  the  sense 
now  being  examined,  may  be  distributed  into  three 
classes,  two  of  which  classes  may  be  said  to  have 
generated,  in  England  at  least,  influential  schools  of 
opinion  on  the  subject.  To  the  first  class  belong  those 
who  mean  by  a  code  nothing  more  nor  less  than  a  written 
republication  of  the  whole  mass  of  existing  law,  statute 
and  common  law,  written  and  unwritten  law,  attention 
being  mainly  paid,  in  the  way  just  described,  to  the 
certainty  and  publicity  of  the  new  body  of  law,  and 
questions  of  arrangement  and  even  of  consistency  in 
terminology  being  treated  as  of  very  subordinate  im- 
portance. 

To  the  second  class  belong  those  who,  like  tlie  last- 


A  CODE  AND   A   DIGEST.  3G7 

mentioned  persons,  consider  publicity  and  certainty 
the  main  purpose  of  a  code,  but  desire  to  adhere  as 
closely  as  possible  to  the  language,  conceptions,  and 
methods  of  arrangement  familiar  in  the  old  law.  They 
would  codify  the  statute  and  the  common  law  apart  from 
one  another,  and  would  think  it  a  hazardous  experiment 
to  attempt  to  frame  a  new  scientific  vocabulary  and 
logical  mould  to  which  both  departments  of  law  might 
be  forced  to  adapt  themselves.  In  the  eyes  of  these 
reasoners,  who  represent  some  of  the  most  able  and 
thoughtful  practitioners  at  the  English  bar,  the  essence 
of  so-called  codification  is  not  the  attainment  of  the 
highest  possible  amount  of  unity  and  symmetry,  but 
the  liberation  of  old  law  from  the  antinomies  and 
obscurities  which  impeded  its  free  and  natural  growth. 

Thus  the  main  part  of  the  codifier's  work  would  be 
that  of  comparing  the  results  of  decided  cases,  for  the 
purpose  of  throwing  the  weight  of  his  influence  into 
the  scale  of  one  set  of  authorities  rather  than  of  another ; 
of  announcing  the  existence  of  irreconcilable  con- 
tradictions, for  the  purpose  of  inviting  legislative 
interference ;  of  declaring  certain  principles  and  rules 
to  have  become  practically  obsolete,  and  certain  decisions, 
once  regarded  as  authoritative,  to  be  now  finally  over- 
ruled; and,  lastly,  of  stating  the  general  results  of 
decided  cases  in  the  form  of  brief  and  compendious 
propositions,  yet  with  the  least  possible  encroachment 
on  the  old  legal  conceptions  and  language.  This  process 
is  sometimes  called  digesting,  or  making  a  digest,  and  is 
contrasted  with  codifying,  or  making  a  code. 

There  is,  undoubtedly,  a  cautiousness  and  moderation 
attaching  to  the  suggested  process  which  goes  far  to  render 
it  popular  with  many  who,  from  daily  experience,  are 
well  aware  of  the  delay,  inconvenience,  and  injustice 
occasioned  by  a  chaotic  condition  of  the  law  authorities, 


358  OBJECTIONS  TO  A  DIGEST. 

and  yet,  from  constitutional  timidity  or  acquired  pro- 
fessional wariness,  shrink  from  the  bolder  schemes 
advocated  in  other  quarters.  The  objections  to  this 
method  will  be  more  clear  when  other  current  notions 
of  what  codification  does  and  ought  to  imply  have  been 
evolved.  In  the  mean  time  it  is  sufficient  to  notice  that 
such  a  scheme  as  the  above  involves  a  large  part  of 
exactly  the  same  labour  as  would  be  required  in  recasting 
the  whole  body  of  the  law  into  a  new  and  symmetrical 
shape  better  adapted  to  the  demands  of  modern  society. 
So  far  the  work  is  a  necessary  one  in  any  case,  and,  in 
the  least  sanguine  view,  may  be  treated  as  a  preparatory 
step  to  the  creation  of  a  more  systematic  work.  But, 
on  the  other  hand,  all  that  part  of  the  work  (and  that 
not  the  least  laborious)  which  is  concerned  with  the 
re-expression,  in  brief  rules  of  law,  of  the  general  result 
of  decided  cases  would  have  to  be  done  over  again  if  ever 
a  more  systematic  project  were  hereafter  adopted. 

If  a  great  national  waste  is  not  to  be  incurred,  the 
decision  on  the  superior  claims  of  some  one  of  various 
rival  methods  must  be  made  at  once ;  and,  before  entering 
upon  any  of  them,  it  must  be  borne  in  mind  that  the 
most  serious  objections  to  the  preparation  of  this  sort  of 
"  digest,"  as  a  substitute  for  a  more  organically  complete 
work,  are  that  the  bulk  of  the  work  must  be  enormous  ; 
the  facilities  for  reference  and  study  must  be  of  a  very 
inferior  sort ;  and,  in  the  place  of  taking  occasion  to 
reconstruct  the  form  of  English  law  after  a  fashion  better 
adapted  to  the  exigences  of  the  present  day  and  in 
closer  sympathy  with  the  form  of  Continental  systems  of 
law,  every  antique  fossil  is  carefully  preserved  (if  only 
its  existence  is  indubitably  established),  and  the  accidental 
divisions  and  language  generated  in  semi-civilized  times 
are  embalmed  and  reverentially  handed  down  to  supply 
the  necessities  of  endless  generations  to  come. 


GRADUAL  CODIFICATION.  8G9 

The  third  class  of  adherents  to  the  cause  of  codifica- 
tion generally,  in  the  first  sense  of  the  term. above  noted, 
place  a  high  value  upon  certainty  and  publicity,  and  yet, 
unlike  the  members  of  the  last  class,  have  no  lingering 
fondness  for  the  forms  and  language  of  the  past.  On  the 
other  hand,  they  consider  complete  logical  unity  and  con- 
sistency, as  applied  to  the  complete  reconstruction  of  a 
whole  body  of  national  law,  as  of  very  subordinate  im- 
portance. These  persons  belong  to  what  is  sometimes 
characterized  as  an  essentially  "practical"  type.  They 
consider  not  only  what  is  best,  but  what' is  possible  ;  and 
the  temptation  that  besets  them  is  to  take  Avhat  is  very 
inferior,  because  it  is  attainable  with  the  least  amount  of 
delay  and  of  immediate  opposition.  No  doubt,  in  the 
prosecution  of  every  great  enterprise  something  approach- 
ing to  a  compromise  has  to  be  made,  in  order  to  secure 
the  co-operation  of  those  who  cannot  see  so  far  or  so 
wide  as  the  originator  of  the  movement.  In  such  cases, 
the  main  duty  of  the  originator  is  to  beware  that  he  does 
not  sacrifice  so  much  as  to  make  the  movement  not  Avorth 
further  persisting  in,  and  that  he  does  not  interpose 
permanent  barriers  in  his  path  which  shall  for  ever 
prevent  him  from  progressing  to  the  highest  point  of 
perfection. 

The  class  of  "  codifiers  "  now  under  consideration  are 
fond  of  speaking  of  "  gTadual "  or  of  "  progressive  "  codifi- 
cation. They  desire  to  reconstruct  large  portions  of 
the  law,  each  severally  by  itself — in  fact,  converting  all 
the  law  oil  each  separate  tojoic  into  a  statute,  the  statutes 
being  quite  independent  of  one  another,  or  only  casually 
related.  The  subjects  to  be  thus  codified  in  turn  would 
be  chosen  either  in  view  of  their  apparent  importance,  or 
of  the  pressing  need  they  stand  in  of  having  some  process 
of  re-organization  performed  upon  them.  The  titles  of  the 
several  subjects  would  be  the  ones  currently  in  use,  and 


370  BRITISH   INDIAN    CODES. 

would  thus  presuppose  the  retention  of  all  the  main 
divisions  of  the  law  which  have  been  familiar  from  the 
most  ancient  times. . 

This  notion  of  codification  was  that  which  seems  to 
have  prevailed  at  the  commencement  of  the  preparation 
of  the  Code  Napoldon,  though  the  systematic  treatises 
of  Pothier,  and  the  actual  prevalence  of  Roman  law  in  a 
large  part  of  France  and  its  influence  in  other  parts, 
secm-ed  the  use  of  a  logical  language  and  of  a  method 
of  classification  to  which  each  branch  of  the  law,  as 
it  became  successively  codified,  readily  adapted  itself. 
The  same  practice  has  been  applied  with  success  (as  it 
would  appear)  to  British  India,  in  which  the  peculiar 
circumstances  of  the  country  would  seem  to  have  rendered 
it  eminently  suitable,  or,  rather,  indispensable.  In  British 
India  the  character  of  the  law  has  had  a  political  import- 
ance which  is  wholly  unlike  anything  that  exists  in 
England,  or  in  most  of  the  countries  of  Europe.  The 
necessity  of  discovering  some  system  of  law  which  would 
neither  shock  the  prejudices  of  natives,  nor  grievously 
disappoint  the  expectations  of  English  settlers — which 
would  preserve  that  which  was  sanctioned  by  custom, 
and  yet  afford  a  very  wide  field  for  the  introduction  of 
systematic  legislation;  which  could  be  easily  learnt  and 
readily  administered — this  necessity  concerned  the  very 
vitality  of  the  English  dominion  in  India,  and  provision 
for  it  must  needs  have  taken  precedence  of  all  considera- 
tions for  the  future  unity  and  completeness  of  the  whole 
code. 

Similar  circumstances  existed  in  Prussia  under 
Frederick  II.,  and  previously  to  the  influence  of  the 
French  codes  introduced  into  Prussia  by  Napoleon, 
when  codification  had  already  become  one  great  question 
of  the  day.  Though  the  code  of  Frederick  II.  was  not 
confined  to  particular  topics,  yet  it  was  very  far  from 


OBJECTIONS  TO   PARTIAL  CODIFICATION.  871 

exhausting  the  whole  body  of  law.  By  the  "  Patent  of 
Publication,"  it  was  said  that  the  code  was  to  be  merely 
a  subsidiary  system,  to  take  the  place  of  Roman,  "common 
Saxon,"  and  other  foreign  subsidiary  laws  and  statutes. 
All  provincial  laws  were  to  continue  in  force  as  hitherto, 
but  they,  too,  were  to  be  severally  digested  or  codified 
within  three  years. 

The  objections  to  this  partial  codification  are  obvious 
on  the  face  of  it,  and  the  only  excuse  for  it  is  the  un- 
doubtedly superior  facility  of  getting  the  work  undertaken 
at  all.  Many  persons  who  will  stand  aghast  at  the  project 
of  codifying  the  whole  law,  as  too  adventurous  and  rash  a 
task  for  mortal  man  to  grapple  with,  will  engage  cheer- 
fully enough  in  the  task  of  consolidating  all  the  statutes 
and  embodying  all  the  principles  of  common  law  on  a 
particular  subject,  even  though  that  subject,  like  merchant 
shipping,  bills  of  exchange,  evidence,  or  jury  trial,  be  one 
of  enormous  range.  Nor  'wdll  such  persons  be  much  more 
alarmed  if  the  consolidating  and  embodying  statute  affect 
a  precision  in  language  and  skill  in  logical  arrangement 
of  a  kind  entii'ely  novel  in  legislative  enactments. 

In  this  way,  no  doubt,  a  considerable  amount,  or  per- 
haps the  whole,  of  the  law  might  gradually  be  reduced 
into  statute  law,  and  form  a  body  of  codes  or  a  code. 
Nevertheless,  there  would  still  hang  round  the  work  the 
vices  of  its  mode  of  accomplishment.  There  could  be 
no  possible  harmony  of  view  between  the  different  sets 
of  codifiers  working  (it  may  be)  at  long  distances  of  time 
without  mutual  concert,  and  with  only  a  very  imperfect 
reference  to  one  another's  work.  This  want  of  unity  in 
conception  and  execution  cannot  but  largely  aiiect  tho 
character  of  the  final  work ;  and  though  that  work,  even 
with  such  shortcomings  as  are  thus  implied,  need  not  be 
valueless,  or  may  even  be  a  great  gain  upon  what  went 
before,  it  is  a  serious  mistake  to  expend  the  toil  neces- 


S72  CLAIMS   OF  LOGIC  AND  SYMMETRY. 

sary  in  any  case  to  the  completion  of  a  code  upon  a 
work  which,  for  educational  purposes,  popular  and  pro- 
fessional, as  well  as  for  purposes  of  speedy  and  ready 
disputation  in  courts  of  justice,  is  something  very  far 
removed  from  the  best. 

It  is  time  now  to  pass  on  to  the  second  mode  of 
interpreting  the  term  codification,  to  the  full  appreciation 
of  which  the  above  remarks  on  partial  codes  will  have 
fitly  prepared  the  way.  In  this  second  sense  of  the  term, 
a  code  is  eminently  a  product  of  logical  art.  The  per- 
sons Avho  advocate  codification  in  the  sense  now  being 
considered,  while  they  agree  with  the  former  in  the 
importance  they  attach  to  certainty  and  publicity  in  the 
law,  yet  differ  from  these  in  attaching  at  least  an  equal 
importance  to  the  claims  of  symmetry,  of  consistency  of 
language,  and  of  perfection  in  logical  distribution.  They 
hold  that  one  great  purpose  of  a  code  is  to  shorten  and 
simplify  labour.  Another  grea,t  purpose  is  to  prevent 
litigation  by  removing,  as  far  as  possible,  all  grounds  for 
dispute  about  the  meaning  of  terms  or  the  import  of 
sentences.  Now,  the  only  means  to  secure  both  these 
objects  at  once  is  to  rescue  law  from  the  verbiage,  the 
cross-divisions,  and  the  cloudy  classifications  in  which 
the  accidents  of  ages  (and  those  mostly  very  dark  ages) 
of  forensic  dispute  have  shrouded  it,  and  to  republish  it 
in  a  form  to  which  the  most  exact  logician  can  take  no 
exception.  Not,  however,  that  it  is  sought  needlessly  to 
alter  terms,  and  to  reconstruct  familiar  notions.  On 
the  contrary,  just  as  little  change  would  be  made  as  was 
absolutely  indispensable  for  the  above  ends,  but  also 
just  as  much. 

There  are,  indeed,  those  who  contend  that  law  by  its 
nature  resists  the  process  of  being  hemmed  in  by  the 
logical  confines  which  are  suitable  to  mark  the  various  de- 
])artments  of  a  physical  science,  and  they  go  on  to  contend 


ANALOGY   OF   WELL-DRAWN   STATUTES.  8/3 

that  to  make  much  of  rigid  definitions  and  sound  classifica- 
tion in  matters  of  law  is  labour  in  vain.  The  objection 
to  codification  in  the  sense  now  being  considered  is  so  com- 
mon a  one,  especially  in  England,  that  it  is  worth  while 
examining  with  some  attention  the  grounds  upon  which 
it  rests.  The  meaning  of  the  objection  seems  to  be 
that  the  institutions  upon  which  law  is  based  are  so 
peculiar,  the  transactions  of  mankind  out  of  which  refined 
legal  rules  grow  so  multiplied  and  so  intricate,  and  the 
capacities  of  language  so  limited,  considering  the  strain 
put  upon  it  for  the  expression  of  law,  that  only  a  very 
moderate  amount  of  scientific  precision  in  this  region 
can  ever  he  hoped  for  or  ought  to  be  attempted. 

It  might  be  sufiicient  to  reply  to  this  sort  of  reasoning 
that  every  modern  statute  enacted  by  the  British  Parlia- 
ment, with  its  distributed  subject  matter,  its  logical 
classifications,  its  attempted  accurate  terminology,  and  its 
interpretation  clauses,  not  only  aspires  to  keep  pace  with 
the  subtleties  of  human  action  and  the  diversities  of 
social  and  commercial  operations,  but  proceeds  upon  a 
theoretic  belief  that  the  endeavour  will  be  not  altogether 
unsuccessful.  Some  statutes  are  very  badly  drawn  and 
others  are  well  drawn;  but  whether  well  or  ill  drawn, 
the  standard  by  wdiich  the  adequacy  of  a  statute  is 
universally  and  properly  weighed  is  that  of  logical  and 
scientific  completeness.  The  praises,  again,  which  are 
accorded  to  certain  codified  systems  of  law, — as  the 
works  undertaken  under  the  auspices  of  Justinian, — are 
based  on  the  rigid  precision  of  the  terminology,  and  the 
exhaustiveness  of  the  classification,  quite  as  much  as  on 
the  value  of  the  legal  conceptions  and  the  firm  hold  of 
them  which  the  writers  displayed.  In  the  same  way  the 
absence  of  definitions  is  notoriously  treated  as  a  serious 
imperfection  in  the  French  codes,  and  the  current 
criticism    directed   against   the  French  and  other  cele- 


S/4  PURPOSE   OF   DEFINITIONS. 

brated  modern  codes  is  usually  based  on  some  purely 
locjical  shortcomino-s. 

Thus  it  would  appear  that  when  once  a  code  is  made 
or  while  it  is  being  made,  the  common  voice  of  mankind 
demands  accuracy  in  preference  to  looseness  in  the  use  of 
terms,  and  sound,  in  preference  to  unsound,  methods 
of  arrangement.  Instead  of  making  allowance  for  the 
difficulties  of  the  codifier  in  view  of  the  variety  and 
complexity  of  human  action,  the  attainment  of  the 
highest  possible  amount  of  exactness  in  the  conduct  of 
logical  processes  is  imperiously  demanded.  Nevertheless, 
it  is  sometimes  the  very  same  persons  who  discourage 
the  project  of  making  a  systematic  code,  on  the  alleged 
ground  that  the  rigid  logic  attainable  in  the  treatment  of 
the  physical  sciences  is  not  attainable  in  the  treatment 
of  law,  who  are  most  severe  on  the  codifier  who  ill  dis- 
charges his  most  appropriate  and  necessary  functions. 

It  might  almost  seem  as  if  this  class  of  objectors 
believed  that  the  persons  who  favoured  the  sort  of 
codification  now  being  considered  were  stricken  with  a 
mania  for  definition  and  classification,  solely  as  such  and 
wholly  apart  from  any  practical  end  to  be  served. 

The  sole  purpose  of  definitions  is  to  correct  the  conse- 
quences of  the  vague  and  uncertain,  or  often  ambiguous, 
meanings  which  have  generally  become  attached  to  terms 
largely  used  in  the  common  speech  of  the  people.  The 
terms  of  law  are  very  generally  also  popular  terms,  and 
have  become  infected  with  all  the  vacillation  and  flux 
incident  to  words  bandied  about  in  the  common  speech 
of  unthinking  people.  Furthermore,  these  terms  are  apt 
to  contract  a  variety  of  peculiar  and  artificial  meanings 
from  the  practice  of  courts  of  justice  themselves;  and 
this  fact  is  the  more  menacing,  as  it  requires  a  special 
professional  education  to  appreciate  the  various  mean- 
ings, which  are  therefore  likely  to  escape  the  attention  of 


PURPOSE   OF  CLASSIFICATION.  875 

tlie  legislator  Avhen  lie  addresses  himself  to  the  amend  - 
ment  of  existing  law. 

The  demand  for  rigid  classification  is  equally  urgent, 
and  is  based  on  e-xactly  the  same  considerations  as  the 
demand  for  it  in  the  treatment  of  a  physical  science.  It 
is  not  desirable,  in  the  exposition  of  a  body  of  laws,  to 
have  to  handle  the  same  matter  over  and  over  again.  It 
vastly  increases  the  bulk  of  the  work,  while  it  enhances 
the  labour  and  impedes  the  facility  of  reference.  Ordi- 
nary common  sense  suggests  the  adoption  of  an  arrange- 
ment by  Avhich  that  which  is  common  to  a  number  of 
topics  should  be  treated  by  itself  and  apart,  and  that 
which  is  peculiar  to  each  of  the  topics  should  also  be 
treated  apart ;  in  other  words,  there  is  a  transparent 
convenience  in  making  the  general  precede  the  special. 

The  objection  under  review,  probably,  is  founded  on 
a  suspicion  that  this  division  into  what  is  "  general "  and 
what  is  "  special "  cannot  be  always  carried  out  in  the 
exposition  of  a  body  of  law.  But  it  certainly  is  carried 
out  daily  in  the  creation  of  statutes  which  are  broken 
up  into  chapters,  divisions,  clauses,  sections,  and  sub- 
sections;  the  invariable  principle  of  distribution  being 
the  precedence  of  what  is  general  over  what  is  special. 
Again,  the  objection  in  question  seems  to  proceed  upon 
a  confusion  of  law  and  morality.  There  is  no  more 
notable  distinction  between  these  two  fields  than  that 
one  is  capable  of  being  exactly  circumscribed  in  its 
whole  area  by  the  limitations  of  language,  and  the  other 
is  not.  It  is  true  that  law,  like  morality,  touches  upon 
almost  every  department  of  human  action,  and  every 
human  interest.  But  morality  addresses  what  is  inward, 
and  is  occupied  with  individual  cases  and  circumstances. 
Law  is  concerned  with  what  is  outward,  and  expresses 
itself  in  general  rules.  Now,  whether  it  be  true  or  not 
that  language  is  adequate  to  cover  the  whole  realm  of 


876         LANGUAGE  ADAPTED  TO   PURPOSES  OF   LAW. 

human  thought  and  feeling,  it  is  certainly  true  tliat  it 
is  fully  equal  to  describe  and  map  out  outward  acts,  and 
to  designate  such  of  the  coarser  mental  antecedents  of 
these  acts,  as  can  be  matter  of  direct  concern  to  the 
legislator  and  the  judge.  The  very  process  of  administer- 
ing public  justice  implies  a  recognition  of  this  fact.  It 
is  an  oral  process,  depending  wholly  upon  the  oral 
communication  of  facts  and  the  oral  enunciation  of  the 
rule  of  law  which  seems  to  be  applicable. 

It  would  be  a  poor  answer  to  a  claim  or  a  prosecution  to 
allege  that  the  acts  of  the  defendant  w^ere  of  too  subtle 
and  complicated  a  nature  to  be  susceptible  of  the  appli- 
cation of  law.  It  might  indeed  haj)pen  that — as  in  the 
case  of  prosecutions  for  opinions — the  matter  was  really 
one  which  never  could  be  made  the  subject  matter  of  a 
judicial  investigation ;  and  as  to  which  the  only  possible 
topic  of  inquiry  would  be  the  presence  or  absence  of 
some  act  of  outward  conformity.  Or  it  might  happen 
that  no  law  had  yet  actually  been  made,  and  there- 
fore either  that  some  existing  law  must  be  strained  so  as 
to  meet  the  emergency,  or  that  no  remedy  or  penalty 
could  be  awarded  or  exacted.  Thus,  it  is  obvious 
that  law  implies,  from  its  very  nature,  the  capacity  of 
describing  in  human  speech  all  the  human  transactions 
which  can  be  the  subject  of  law;  and  good  law  implies 
(among  other  things)  the  describing  them  with  exqui- 
site precision.  So  far,  indeed,  is  it  from  being  true  that 
the  logical  use  of  language  is  less  appropriate  to  the 
exposition  of  a  body  of  law  than  to  that  of  a  physical 
science,  that  it  may  be  rather  said  that  in  the  ex- 
position of  law,  human  language  attains  its  worthiest  and 
most  appropriate  use. 

There  is  one  sense,  indeed,  in  which  the  objection 
Tinder  consideration  might  seem  to  be  based  upon  an 
indisputable  truth.     It  is  the  fact  that  the  transactions 


PRINCIPLES   AND  MAXIMS   OF   LAW.  o77 

of  men  which  law  seeks  to  regulate,  and  the  modes  of 
fraud  and  wrong-doing  by  which  men  endeavour  to 
evade  the  vigilance  of  law,  are  so  varied  and  so  con- 
stantly new  that  it  is  impossible  in  anticipation  to  frame 
particular  language  which  shall  distinctly  describe  all 
the  acts  that  it  is  the  intention  of  the  legislator  to 
prevent.  For  this  reason  recourse  must  needs  be  had 
to  two  devices :  one,  that  of  incessant  fresh  legislation 
or  periodical  amendments  of  the  code ;  the  other,  that 
of  formulating  principles,  maxims,  or  general  rules,  the 
exact  extent  and  limit  of  which  must  be  gathered  from 
a  general  study  of  the  code,  aided  by  such  illustrations 
or  explanations  as  may  be  appended  to  them.  It  is  some- 
times supposed  that  the  possession  of  "  principles "  of 
law  is  the  exclusive  privilege  of  a  system  of  unwritten 
law ;  and  that  the  creation  of  a  code  implies  either  the 
reduction  of  all  principles  to  minute  and  specific  regula- 
tions, or  else  the  statement  of  principles  in  such  general 
and  vague  terms  as  practically .  to  afford  the  judge  no 
guide  whatever.  This  last-mentioned  consequence  has 
undoubtedly  followed  in  the  case  of  the  French  codes, 
and  an  inordinate  swarm  of  commentari^  is  the  result. 
It  has  yet  to  be  seen  whether  the  practice  of  including 
illustrative  cases, — such  as  are  familiar  in  the  Digest, 
and  such  as  have  been  introduced  with  success  in  the 
codes  of  British  India, — as  well  as  an  adroit  use  of 
definitions,  and  of  interpretation  clauses,  will  not  prove, 
in  the  case  of  new  codes,  that  all  alarm  on  this  head  is 
wholly  superfluous. 

From  the  above  examination  of  objections,  it  will 
be  seen  what  is  the  essential  conception  of  a  code  in  the 
sense  now  being  considered.  It  is  not  merely  a  ^vTitten 
republication  of  the  whole  mass  of  existing^  law,  but  it 
also  implies  the  greatest  attainable  perfection  in  precision 
of  terminology  and  in  skilful  arrangement.     The,  metjiod 


378  TRUE  PURPOSES   OF   CODIFICATION. 

of  this  arrangement  will  not,  of  course,  be  dictated  by 
reference  to  merely  abstract  logical  considerations  or 
to  scholastic  refinements.  In  the  treatment  of  every 
science,  and,  indeed,  in  all  other  business,  modes  of 
classification  must  depend  largely  upon  the  nature  of 
the  practical  purpose  in  view.  In  the  case  of  a  code, 
convenience  and  rapidity  of  reference  for  judges  and 
professional  advocates  is  one  part  of  the  purpose  in 
view.  Professional  and  popular  education  is  another 
part  of  that  purpose.  Another  part  is  the  supplying 
information  on  the  general  structure  of  the  whole  law  to 
legislators  and  to  foreigners.  While  yet  another  part  of 
the  purpose  is  the  enabling  each  class  of  persons  in  the 
community  to  study  thoroughly  the  portion  of  the  law 
which  peculiarly  touches  themselves,  without  obliging 
tliem  to  lose  themselves  in  the  intricacies  of  the  whole 
code. 

There  is  a  third  sense  in  which  the  word  code  is 
familiarly  used,  that  of  complete  republication  of  the 
whole  existing  law  of  a  State,  after  the  fashion  last 
described,  coupled  with,  and  embodying,  all  the  fresh 
legislation  which  seems  called  for  in  order  to  render  the 
code  theoretically  adequate  to  what  the  codifier  takes 
to  be  the  legal  wants  of  the  nation  at  the  time.  This  is 
a  conception  of  a  code,  which  seems,  almost  insensibly,  to 
creep  into  and  to  qualify  the  other  conceptions.  And  it 
is  natural  this  should  be  so,  because  the  publication  of 
any  code  whatever  involves,  at  the  least,  that  amount 
of  legislation  which  is  needed  in  order  to  give  the  code 
transcendent  authority ;  and,  in  fact,  the  re-expression  of 
existing  law,  when  extended  over  a  wide  surface,  cannot 
but  involve  (even  in  the  hands  of  the  most  cautious  and 
diffident  codifier)  a  large  amount  of  unconscious  altera- 
tion in  the  substance  of  the  law.    Even  such  self-restraint 


CODIFICATION    AND    LEGISLATION.  379 

as  would  confine  itsc4f  to  the  re-expression  of  existing 
rules  is,  in  the  case  of  a  code  based  on  a  systematic  plan, 
practically  impossible.  There  are  gaps  that  must  be 
filled,  doubts  that  must  be  solved,  contradictions  that 
must  be  reconciled,  on  every  side ;  and  the  codifier  cannot 
proceed  with  his  task  without  initiating  such  an 
amount  of  legislation  as  will  at  least  make  his  work 
complete  in  form.  But  the  transition  from  recom- 
mending essential  legislation  such  as  this  to  that  of 
recommendin2f  leg-islation  of  a  more  ambitious  sort  is 
almost  irresistible,  and  in  that  way  it  is  hard  to  draw 
the  line  between  the  two  corresponding  meanings  of  the 
term  code. 

The  above  investigation  of  the  various  senses  in  which 
the  term  code  is  used  suffices  to  indicate  the  nature 
of  the  several  projects  which  are  favoured  in  different 
quarters  for  the  systematic  republication  of  ancient 
systems  of  law.  It  is,  however,  to  be  remembered  that 
the  problem  is  a  very  different  one  in  different  countries, 
and  may  call  for  a  proportionately  different  species  of 
solution.  Thus,  all  analogies  from  the  use  or  success  of 
certain  kinds  of  codes  in  one  countiy  must  be  applied 
with  the  utmost  discrimination  and'  caution  to  the 
circumstances  of  another. 

This  heedless  use  of  foreign  analogies  has  wrought  a 
twofold  injury  to  the  cause  of  codification  in  England. 
On  the  one  hand,  people  have  argued  from  the  good 
success  of  a  foreign  code  to  the  probability  of  an  equally 
successful  experiment  in  this  country.  The  result  has 
been  that,  when  it  is  discovered  that  a  foreign  code  has 
disclosed  in  the  course  of  its  operation  serious  defects, 
the  conclusion  has  been  hastily  drawn  that  an  English 
code  is  likely  to  fail  in  the  same  direction.  On  the  other 
hand,  it  is  frequently  argued,  from  the  unsuitability  to 


880        ARGUMENT  FEOM  FOREIGN  CODES. 

the  uses  of  the  English  nation  of  any  code  which  should 
resemble  a  Continental  one,  that  no  suitable  English 
code  could  ever  be  constructed.  In  order  to  impress  this 
lesson  more  strongly  it  is  worth  while  to  estimate  Avith 
some  care  the  characteristic  differences  in  the  legal 
situation  of  England,  and  of  such  a  country  as  France, 
which,  for  the  present  purpose,  is  the  best  typical 
instance  to  select. 

In  England,  as  in  Rome,  the  development  of  law 
has  been  unbroken  in  continuity,  and  has  extended  over 
a  number  of  centuries.  Based  originally  upon  great 
and  durable  institutions,  it  has  spontaneously  expanded 
as  the  material  and  moral  necessities  of  the  gTowing 
nation  required,  till  it  presents  at  the  present  day  the 
appearance  of  a  vast,  uniform,  organic  structure.  Nor,  in 
this  account  of  the  actual  state  and  history  of  English 
law,  are  the  contrarieties  exhibited  by  the  two  lival 
systems  of  law  and  equity  forgotten. 

As  in  Rome,  so  in  England,  equity  has  been  nothing 
more  than  the  accidental  shape  which  the  inevitable 
development  of  law  has  taken.  The  existence  of  a 
double  series  of  courts  and  jui'isdictions — one  embody- 
ing the  progressive,  and  the  other  the  stationary, 
element  of  law,'  though  neither  of  them  wholly  con- 
sistent in  keeping  its  own  province — has  undoubtedly 
been  a  great  practical  inconvenience,  and  has  brought 
upon  the  administration  of  justice  notorious  scandal  on 
the  ground  of  delay  and  uncertainty.  But,  in  fact,  the 
two  systems  have  for  ages  flourished  vigorously  side  by 
side ;  and  each,  while  in  appearance  counteracting,  has 
really  propped  up  the  other.  But  for  "  equity,"  "  law  " 
nmst  have  rotted  away  into  a  mass  of  lifeless  tech- 
nicalities, and  become  wholly  discredited  through  its 
insufficiency  to  meet  the  exigencies  of  an  energetically 
growing  society.     And  but  for  "  law,"  equity  must  have 


BENTHAM's  testimony  in  favour  of  ENGLISH  LAAV.  881 

dissolved  into  a  group  of  loose  moral  maxims,  arbitrarily- 
applied  and  easuistieally  invented. 

Each  of  the  two  great  systems  in  reality  presupposes 
the  co-existence  of  the  other ;  and,  so  far  from  implying 
a  breach,  they  testify  in  the  most  signal  way  to  the 
essential  unity  which  prevails  in  the  general  structure 
of  English  law.  The  new  Judicature  act,  which  abolishes 
the  ancient  division  between  courts  of  law  and  of  equity, 
while  retaining  all  the  principles  which  have  been  recog- 
nized in  either  class  of  courts,  will  result  in  oivino-  to 
this  unity  a  living  expression  of  the  most  commanding 
sort. 

Nor  must  the  irregularities,  inconsistencies,  and  ob- 
scurities which  have  disfigured  the  form  and  substance 
of  English  law  hide  out  of  sight  the  richness  of  the 
material  in  which  that  law  abounds.  The  severest  critic 
that  the  English  law  has  ever  encountered  has  admitted 
as  much  as  could  possibly  be  needed  to  establish  the 
value  of  the  materials  of  that  law.  In  his  papers  on 
codification  addressed  to  the  President  of  the  United 
States  (Works,  vol.  iv.  p.  460)  Bentham  says,  "All  this 
"  while,  incapable  as,  in  respect  of  its  forvn,  it  is  of  serving, 
"  in  any  tolerable  degree,  in  its  present  state,  in  the 
"  character  of  a  rule  of  action  and  guide  to  human  con- 
"  duct,  nothing  could  be  much  further  from  the  truth, 
"than  if,  in  speaking  of  the  matter  of  which  English  law 
"  is  composed,  a  man  were  to  represent  it  as  being  of  no 
"use.  Confused,  indeterminate,  inadequate,  ill-adapted, 
"  and  inconsistent  as,  to  a  vast  extent,  the  provision,  or 
"  no-provision  would  be  found  to  be,  that  has  been  made 
"  by  it  for  the  various  cases  that  have  happened  to 
"  present  themselves  for  decision ;  yet,  in  the  character 
"  of  a  repository  for  such  cases,  it  affords,  for  the  manu- 
"  factory  of  real  law,  a  stock  of  materials  which  is  beyond 
"all   price.     Traverse   the  whole  continent  of  Europe, — 


882  U:,'IFORMITY   OF  ENGLISH  JUDICIAL  MIND. 

"  ransack  all  the  libraries  belonging  to  the  jurispruden- 
"  tial  systems  of  the  several  political  States, — add  the  con- 
"  tents  all  together, — you  would  not  be  able  to  compose  a 
"collection  of  cases  equal  in  variety,  in  amplitude,  in 
"  clearness  of  statement — in  a  word,  in  all  points  taken 
"  together,  in  instructiveness — to  that  which  may  be  seen 
"  to  be  afforded  by  the  collection  of  English  RepoHs  of 
"  adjudged  cases,  on  adding  to  them  the  abridgments  and 
"  treatises,  by  which  a  sort  of  order,  such  as  it  is,  has  been 
"  given  to  their  contents.  Of  these  necessary  materials, 
"  the  stock  already  in  hand  is  not  only  rich,  but,  one  may 
"  venture  to  say,  sufficient :  nor,  to  the  composition  of  a 
"  coinjjlete  body  of  law,  in  which,  saving  the  requisite 
"  allowance  to  be  made  for  human  weakness,  every 
"  imaginable  case  shall  be  provided  for,  and  provided  for 
"  in  the  best  manner,  is  anything  at  present  wanting  but 
"  a  duly  arranging  hand." 

It  is  further  remarkable,  in  making  an  historical  survey 
of  English  law,  what  a  uniformity  of  mind  and  of  legal 
temper  seems  to  have  prevailed  among  all  the  English 
judges  at  whatever  periods  they  may  have  lived.  That 
certain  peculiar  and  eccentric  modes  of  reasoning  have 
been  in  vogue  at  some  periods  everybody  knows.  The 
antiquated  doctrines  about  the  common  law  reposing  in 
the  "  bosom  of  judges  "  or  "  in  the  clouds  "  or  being  the 
"  perfection  of  reason,"  as  well  as  the  curious  arguments 
in  favour  of  the  law  of  descents  founded  on  the  tendency 
of  all  bodies  to  gravitate  "downwards,"  have  now  for 
some  time  been  exploded  or  relegated  to  the  region  of 
mere  lecjal  curiosities. 

But  in  spite  of  these  temporary  vagaries,  the  race  of 
English  judges  has  had  only  one  mind  as  to  the  true 
methods  by  which  the  existence  or  non-existence  of  an 
alleged  rule  of  law  is  to  be  tested,  and  as  to  the  sort  of 
arguments  which  alone  are  applicable  to  the  case.   Except 


CONTRAST   OF   FRENCH   LAW.  883 

in  the  anomalous  instance  of  the  parallel  principles  up- 
held in  courts  of  law  and  of  equity,  there  have  been  no 
competing  systems  of  law  in  this  country  to  distract 
the  loyalty  of  an  English  judge.  He  may  have  been 
occasionally  tempted  ,to  allude  to  vague  maxims  of  a 
"  law  of  nature,"  or  of  "  natural  justice,"  but  he  has 
instantly  corrected  himself  by  explaining  that  the 
common  law  embodied  the  law  of  nature  and  all  the 
principles  of  natural  justice,  and  so  the  decision  was 
alleged  to  be  given  in  strict  conformity  with  the 
principles  of  the  common  law. 

From  this  review  of  the  general  history  and  present 
circumstances  of  English  law,  it  will  be  readily  under- 
stood what  are  the  difficulties  in  the  way  of  constructing 
a  really  systematic  code.  English  law  embodies  in  itself 
a  great  method,  a  great  mode  of  thought,  and  a  huge 
mass  of  scattered  but  invaluable  material.  The  transi- 
tion in  England  from  an  uncodified  to  a  codified  state 
of  the  law  implies  a  mental  and  almost  moral  meta- 
morphosis of  the  whole  legal  intellect  of  the  country. 
English  law,  at  present,  is  interpreted  by  rules  peculiar 
to  itself.  A  code  must  be  interpreted  by  the  common 
logical  rules  by  w"hich  all  other  written  language  is 
interpreted.  Thus  one  of  the  difficulties  of  codifying 
English  law,  and  of  using  a  code  wisely  when  it  is  made, 
proceeds  from  the  very  compactness  and  unity  of  the 
system  which  is  to  be  codified.  And  yet  the  incessant 
growth  of  new  law  must  render  an  authorized  republica- 
tion of  the  whole  at  some  date  or  other  an  inevitable 
necessity.  The  need  of  codifying  is  growing  just  in 
proportion  to  the  ever  increasing  difficulties  of  the  task. 

Now,  to  contrast  the  condition  of  English  law  at  this 
day,  as  above  described,  with  tliat  of  French  law  at  the 
date  of  the  preparation  of  the  Code  Napoleon,  it  will  be 
seen  that  the  main  demand  in  France  was  unity  instead 


884  SPECIAL   NECESSITY   FOR  A   FRENCH   CODE. 

of  duality  or  plurality  in  the  law.  It  was  not  only  that 
the  Roman  law  prevailed  in  some  provinces  and  the 
customary  law  prevailed  in  other  provinces  ;  but,  even  in 
the  provinces  ruled  by  customary  law,  that  law  only 
extended  to  a  narrow  range  of  subjects,  such  as  fiefs, 
seignorial  rights,  the  system  of  joint  ownership  (com- 
"miinaute  de  hiens)  between  married  persons,  and  the 
right  of  pre-emption  on  the  ground  of  kinship.  As  to  all 
the  other  matters  of  concern  to  an  industrial  and  com- 
mercial society,  such  as  guardianship,  contracts,  and 
testaments,  some  other  legal  authority  had  to  be  resorted 
to.  This  authority  might  be  either  a  regal  ordinance, 
or  a  custom  in  a  neighbouring  province,  or  (as  generally 
happened)  a  rule  of  Roman  law.  But  it  was  and  is  a 
matter  of  an  indefinite  amount  of  dispute  as  to  whether 
the  Roman  law  was  adopted  as  a  supplementary  authority 
because,  in  some  sense,  it  prevailed  as  law  even  in 
custom-governed  provinces,  or  whether  its  rules  were 
adopted  only  because  of  their  invariably  representing  a 
"written  reason."  It  will  thus  be  seen  that  the  chief 
need  for  France,  in  respect  of  legal  reform,  was  a  unity  of 
legal  authority  extending  throughout  the  whole  country. 
This  could  have  been  achieved  in  no  other  way  than  by 
a  code ;  and  whatever  imperfections  have  attached  to  the 
execution  of  the  work,  and  however  numerous  the  com- 
mentaries to  which  it  has  given  birth,  the  general  gain 
must,  nevertheless,  have  been  enormous. 

It  is  needless  to  point  out  how  insufficient  is  any 
analogy  between  the  situation  of  France  and  that  of 
England,  either  to  aid  or  to  injure  the  cause  of  codification 
in  this  country.  A  like  insufficiency  might  be  shown  to 
exist  in  the  popular  analogy  between  the  cases  of  England 
and  British  India,  and  also  between  those  of  England  and 
the  States  of  the  American  Union.  This  argument  of 
the  impotence  of  superficial  analogies  was  handled  in  a 


savigny's  objections.  885 

masterly  way  by  Savigny,  when  he  resented  the  reckless 
importation  of  a  general  code  for  all  Germany  through  a 
mere  imitation  of  the  work  of  Napoleon  in  France  and 
in  the  countries  which  he  subdued. 

The  truth  is,  that  each  nation  must  judge  for  itself 
whether  the  time  has  yet  come  at  which  it  must  needs 
codify  its  law.  The  elements  that  furnish  the  ground 
for  the  decision  are  various,  and  not  always  easy  of 
calculation.  Among  them  are  such  considerations  as 
the  actual  indefiniteness  or  uncertainty  in  the  state  of 
the  law  as  applicable  to  a  large  number  of  important 
questions ;  the  duality  or  plurality  of  systems  of  law  of 
co-equal  authority  ;  the  actual  voluminousness  of  the  law 
rendering  systematic  arrangement  for  speedy  reference  a 
question  of  the  greatest  moment ;  the  probability  of  an 
efficient  code  being  made,  considering  the  capacity  of  the 
persons  who  are  likely  to  make  it ;  and  the  habits  of  the 
community,  as  rendering  a  popular  use  of  the  code  more 
or  less  probable. 

The  most  serious  objection  that  has  ever  been  urged 
against  codifying  an  ancient  system  of  law  under  any 
circumstances  whatever  is  that  thereby  the  spontaneous 
growth  of  law  is  likely  to  be  impeded,  or  diverted  into 
unnatural  directions.  ■  This  objection  touches  upon  far 
profounder  considerations  than  any  above  treated,  and 
has  been  powerfully  urged  in  Germany — though  it  is 
also  not  altogether  unknown  in  England.  The  objection 
is,  of  course,  likely  to  be  urged  with  the  greatest  effect 
in  those  countries  in  which  codification  is  not  imperiously 
called  for,  as  the  sole  means  of  bringing  into  harmony  two 
or  more  competing  systems  of  law,  or  else  as  the  instru- 
ment of  enforcing  on  the  people  the  policy  of  a  new 
government.  Where  neither  of  these  demands  for^ 
codification   is   present,  the  value   of    a  spontaneous  or 


388      EESTllAINTS  ON   SUPKEME   POLITICAL  AUTHOKITY. 

unconscious  development  of  law  is  likely  to  be  estimated 
at  the  hio-hest.  It  is  worth  while  examining;  more 
minutely  what  this  alleged  "  spontaneous  development " 
of  law  means. 

Except  in  the  case  of  foreign  conquest  or  foreign 
influence  of  a  very  peculiar  sort,  every  nation  makes 
its  own  law.  Part  of  the  law,  and  that  the  larger  and 
more  important  part,  is  made  directly  by.  the  invention 
of  the  people  themselves  in  the  action  of  their  daily 
life ;  and  part  of  it  is  made  indirectly,  by  the  invention 
of  a  supreme  political  authority  which  the  people  have 
generated  out  of  their  midst.  This  latter  part  is,  strictly 
speaking,  as  much  made  by  the  will  and  consent  of  the 
whole  people  as  the  former  part,  and  that  not  fictitiously, 
but  really ;  as  that  will  and  consent  would  be  estimated 
not  at  any  particular  moment,  but  as  extending  over  a 
length  of  time  sufficient  to  enable  the  popular  determina- 
tion fully  to  express  itself 

If  a  supreme  political  authority  persists  in  counter- 
acting the  will  of  the  bulk  of  the  population,  either 
the  authority  itself  will  be  dethroned  by  constitutional 
or  revolutionary  processes,  or  the  State  wiU  become  so 
far  disorganized  as  to  be  threatened  with  extinction,  or 
the  supreme  political  authority  will  be  forcibly  com- 
pelled to  change  its  policy,  and  retrace  its  steps. 
Instances  of  each  of  these  solutions  are  supplied  in 
abundance  both  in  ancient  and  modern  times.  The 
phenomenon  is  an  extremely  important  one  as  exhibiting 
what  is  the  true  character  of  a  supreme  political  authority 
at  any  given  epoch,  and  what  are  the  natural  and 
effectual  restrictions  on  that  authority.  It  is  thus  not  a 
mere  utterance  of  demagogic  rhetoric  that  all  law  is  made 
by  the  will  of  the  people.  The  proposition  is  rather 
a  truism  as  thus  stated,  though  what  is  usually  meant 
is  that  the  interposition  of  the  people  should  be   made 


INFLUE^X'E   OF   THE   PEOPLE   ON   LEGISLATION.        387 

more  direct  and  immediate  in  the  enactment  of  laws  ; 
and  that  the  supreme  political  authority,  instead  of 
depending  on  the  assent  of  the  people  as  gathered  in 
the  long  run,  should  be  dependent  on  that  assent  as 
gathered  at  very  brief  intervals  of  time. 

Thus,  so  far  as  occasional  legislation  goes,  being 
emitted  from  time  to  time  accordino*  to  the  exio-encies 
which  seem  to  call  for  it,  it  must  necessarily  be  in 
tolerably  exact  agreement  with  the  wishes,  tastes,  habits, 
and  aspirations  of  the  people  at  large.  The  adjustment, 
indeed,  will  not  be  very  fine,  as  the  influence  of  particular 
classes  of  people  will  now  and  again  dominate  over  that 
exercisable  by  other  classes  ;  and  the  policy  of  in- 
dividual statesmen  or  party  will  do  much  to  make  the 
current  legislation  bear  in  one  direction  rather  than  in 
another.  But  such  interfering  elements  as  these  will,  in 
the  course  of  a  few  years,  be  counteracted  by  rival 
elements  of  the  same  sort,  though  acting  in  the  opposite 
direction,  so  that  the  general  result  will  be  an  exact 
representation  in  their  laws  of  the  tendencies  and 
character  of  the  general  commvmity. 

It  is  true  that,  in  this  approximation  of  statutory  law 
to  the  standard  erected  by  the  popular  will,  it  is 
assumed  that  the  popular  will  has  the  means  of  making 
itself  known.  If  the  rights  of  public  meeting  and  of 
free  discussion  in  the  press  are  either  ignored  or  trampled 
upon  by  the  executive,  there  need  be  no  correspondence 
at  aU  between  the  will  of  the  people  and  the  acts  of  the 
legislature.  In  such  a  State,  whatever  be  the  outward 
form  and  title  of  the  government,  it  is,  in  truth,  nothing 
better  than  an  arbitrary  despotism.  Sudden  revolution 
or  decay,  prolonged,  it  may  be,  over  centuries,  are  the 
only  alternatives  which  can  be  looked  for. 

France,  Belgium,  Italy,  and  Spain,  have  been  fortunate 
enough  hitherto  to  adopt  one  solution.     Turkey  and  the 


o88  PECULIARITIES  OF  STATUTE  LAW. 

Asiatic  kingdoms  have  had  the  other  thrust  upon  them. 
To  Germany  and  England  alone  has  it  been  hitherto 
given  to  escape  the  necessity  of  either  alternative. 

But  the  warning  is  sounded  in  the  ears  of  every 
country,  even  the  freest,  to  the  effect  that  only  by  the 
fullest  possible  freedom  for  discussion  and  peaceable  com- 
bination can  a  truly  healthy  accord  be  secured  between 
the  mind  of  a  people  and  its  laws;  and,  far  short  of 
tyrannical  invasions  of  that  freedom,  even  casual  inter- 
ferences with  it,  whether  legislative  or  executive,  are 
fraught  with  infinite  and  ominous  mischief 

Thus  it  is  a  fact  that  the  ordinary  statute  law 
of  a  State  expresses  the  sentiments  of  the  whole  com- 
munity. But  it  is  also  a  fact  that  the  unwritten  law 
is  likely  to  express  the  sentiments  of  certain  groups  of 
persons  in  the  community  with  still  more  infallible 
precision.  The  unwritten  law  must  be  based  partly  on 
what  people  do  and  partly  on  what  they  want. 

It  is  true  that  the  personal  instrumentality  concerned 
in  forging  the  law  or  in  converting  a  practice  into  a  law 
is  a  person  who  is  generally  outside  the  region  in  which 
the  practice  has  grown  up.  But  such  a  person,  called  as 
is  he  to  judge  in  a  disputed  matter,  is  only  one  in  a  long 
race  of  judges.  Even  though  each  judge  has  his  own 
peculiarities,  his  eccentricities  of  thought,  his  supersti- 
tions and  his  caprices,  if  the  series  of  judges  be  long 
enough,  it  may  be  expected  that  what  is  wayward  in  one 
will  correct  what  is  wayward,  but  in  a  different  directi(m, 
in  another. 

On  the  other  hand,  the  wants,  Avishcs,  and  habits  of 
the  community  in  which  justice  is  administered  are 
likely  to  continue  much  the  same,  with  just  such  silent 
and  graduated  changes  or  deviations  as  the  development 
of  the  nation  brings  with  it.  To  meet  this  uniformity  of 
progi'ess,  it  is  no   doubt    probable    that   a   professional 


PECULIARITIES  OF   Ui^WRITTEN   LAW.  889 

judicial  temper  will  be  framed,  bringing  witli  it  artificial 
modes  of  thinking  and  classifying;  but  such,  a  temper 
will  be  largely  fashioned  by  the  logical  character  of  the 
business  upon  which  decisions  have  to  be  given,  and  will 
therefore  be  steady  and  uniform,  and  will  admit  of  being 
exactly  described  and  evaluated. 

In  view,  then,  of  all  these  circumstances,  it  might  b^ 
expected  that  a  system  of  unwritten  law,  in  which 
customs,  general  maxims,  floating  principles,  and  ancient 
but  familiarly  cherished  institutions,  supplied  the  chief 
materials, — the  rest  being  due  to  nothing  else  than  the 
logical  dress  woven  into  shape  by  a  long  line  of  judges, — 
must  represent  with  the  greatest  possible  nicety,  not 
only  the  actual  will  of  the  people,  but  the  finest  modifi- 
cations of  that  will  as  progressively  manifesting  them- 
selves. The  certainty  and  familiai'ity  of  the  law  supply, 
in  their  turn,  guides  for  action,  so  that  the  regularity 
of  customary  modes  of  intercourse  becomes  intensified 
through  the  action  of  the  very  cause  which  might  have 
disturbed  it. 

Great,  however,  as  are  the  conspicuous  advantages  of 
the  easy  play  between  courts  of  justice  and  the  actual 
habits  of  mankind,  yet  the  disadvantages  are  not  to  be 
overlooked.  It  was  seen  in  an  earlier  chapter  of  this 
work  that  the  true  purpose  of  "law  is  not  only  to  give 
reality  and  vigour  to  the  essential  groups  out  of  which 
the  State  is  constituted,  but  also  to  ascertain  and  describe 
the  true  relations  of  the  groups  to  one  another  and  to  the 
whole  State.  The  peculiarity  of  an  unwritten  system  of 
law, — based  mostly,  as  it  must  be,  on  custom, — is  that  it 
gives  validity  to  the  transactions  of  small  groups  of 
persons,  or  of  persons  living  in  particular  localities,  with- 
out any  concern  for  the  degree  or  the  mode  in  which 
those  transactions  affect  the  well-being  of  all  other 
persons  in  the  community. 
18 


390  JOINT  STATUTE  AND   CUSTOMARY   LAW. 

Customary  law  is,  indeed,  a  perfect  mirror  of  the 
practices  and  wishes  of  numberless  sections  of  persons 
in  the  community ;  but  one  custom  has  only  a  casual 
connection  with  another  custom,  and  one  branch  of 
customary  law  with  another  branch  of  customary  law. 

The  doctrines  of  English  common  law  with  respect  to 
land  and  the  simpler  forms  of  contract  and  even  pro- 
cedure are  instances  of  this ;  as  also  are  the  scattered 
topics  which  alone  found  a  place  in  the  great  customary 
systems  of  France.  It  is  not  true  to  say  of  the  usages 
enshrined  in  these  different  bodies  of  law  that  they 
express  in  the  surest  possible  way  the  will  of  the  people. 
They  only  express'  the  will  of  certain  persons,  or  of 
persons  living  in  particular  places  or  under  particular 
conditions.  To  the  persons  whose  will  the  law  does 
express,  it  readily  becomes  familiar,  and  modifications 
in  the  usages  are  easily  digested  and  reproduced  in  the 
legal  system.  But  the  law  as  a  whole  must  continue  to 
be  made  up  of  great  inharmonious  fragments,  and  the 
will  of  the  whole  people,  as  an  organized  community,  is 
never  consulted  upon  it  directly  or  indirectly.  So  untrue 
is  it  that  a  S3''stem  of  unwritten  law  is  eminently  a  repre- 
sentative of  the  will  and  spontaneous  tendencies  of  the 
whole  people. 

It  has  thus  been  seen  what  are  the  peculiar  character- 
istics of  a  system  of  statute  law,  and  of  a  system  of  cus- 
tomary law.  It  has  been  asserted  by  some  that  the  best 
system  of  all  is  one  jointly  of  statute  and  of  customary 
law.  It  is  scarcely  a  matter  of  choice  whether  or  not 
such  a  system  as  this  last  shall  or  shall  not  be  introduced 
into  a  State,  because  there  is  no  advanced  State  in  which 
either  statute  law  or  customary  law  are  unknown ;  or,  in 
fact,  in  which  the  legal  system  does  not  consist  very 
largely  of  both.  The  sort  of  law  which  is  evolved,  as  of 
necessity,  by  judges  in  the   course  of  applying  already 


RELATIO^•S   OF  A  CODE  TO   CUSTOMARY  LAW.        391     - 

existing  rules,  is  common  to  both  systems,  and,  in  fact, 
is  an  indispensable  incident  in  the  administration  of 
justice.  If  the  interpretation  of  written  language  and 
the  import  of  general  principles  is  not  to  be  fixed  by  the 
concurrent  voice  of  a  series  of  judges  in  conformity  with 
logical  principles  generally  adopted,  either  endless  uncer- 
tainty must  prevail,  or  the  logic  of  self-appointed  com- 
mentators must  take  the  place  of  the  logic  of  the  judicial 
tribunal.  Hence  it  may  be  assumed  that  statute  law, 
customary  law,  and  law  evolved  in  the  act  of  administer- 
ing law,  are  three  universal  elements  in  the  laws  of  every 
State. 

It  remains  to  be  seen  how  far  the  substitution  of  a 
code  for  some  part  of  these  elements  may  tend  to  enliance 
the  advantasfes  and  diminish  the  disadvantages  inherent 
in  all  of  them. 

In  the  first  place,  it  is  no  doubt  true  that  a  code 
made  in  one  generation  is  liable  to  project,  directly  or 
indirectly,  the  intellectual  and  moral  notions  which 
prevail  at  the  day  into  times  when  such  notions  shall 
have  become  anachronisms.  On  the  other  hand,  there  is 
no  such  sure  mode  of  securing  the  maintenance  of  a  fair 
balance  between  the  claims  and  interests  of  all  classes  of 
persons  in  the  community,  and  of  the  State  itself,  as  by 
the  construction  of  a  systematically  aiTanged  body  of 
law.  If  any  claim  or  interest  is  neglected,  if  any  class  is 
privileged  unduly,  if  any  unfairness  or  partiality  works 
anywhere  in  the  legal  system,  the  publicity  and  orderly 
arrangement  of  a  code  must  instantly  bring  it  into  the 
light  of  day. 

So  also  with  the  anomalies  incident  to  customary  law. 
No  custom  will  be  consecrated  by  a  code  which  cannot 
stand  the  criticism  of  the  whole  community.  The  recog- 
nition of  partial  and  local  customs  will  none  the  less 
sufficiently  prevail  by  force  of  the  general  judicial  prin- 


392  PERIODIC   REVISION   OF   THE   CODE. 

ciple  of  satisfying  -well-groundecl  expectations.  With 
respect  to  that  part  of  the  law  which  insensibly  grows 
with  the  admmistration  of  it,  it  must  be  expected  to 
grow  just  as  much  under  a  code  as  in  the  administration 
of  statute  law. 

The  main  remedy  for  this  evil  (if  it  be  one),  as  well  as 
for  that  due  to  the  rigidity  and  inelasticity  of  a  code,  is 
to  provide  for  its  constant  and  periodic  revision,  on  each 
occasion  the  most  authoritative  interpretations  of  language 
being  inserted,  and  such  new  statutes  as  touch  the  organic 
structure  of  the  code  being  also  embodied.  It  must  be 
assumed  throughout  that  in  a  number  of  outlying 
and  special  departments  statute  law  must  be  created 
independently  of  the  code.  The  code  will  only  be  a 
systematic  exhibition  of  the  leading  departments  of  the 
law.  It  will  incorporate  customary  law  and  common 
law,  and  it  will  contain  within  itself  the  principles  of 
its  own  revision  and  of  its  incessant  adaptation  to  the 
national  needs. 

Nevertheless,  the  objection  that  a  code  has  a  special 
tendency  to  fix  in  a  rigid  groove  the  legal  conceptions,  the 
modes  of  classification,  and  the  language,  prevalent  at 
the  time  at  which  it  is  made,  is  deserving  of  most 
attentive  consideration.  The  objection,  indeed,  is  much 
more  potent  if  urged  against  making  a  code  at  one 
epoch  in  the  development  of  a  nation,  than  when  urged 
against  making  a  code  at  another  epoch  or  at  any  epoch 
at  all.  It  takes  a  long  time  in  the  growth  of  any 
nation,  apart  from  direct  external  influences,  for  all  the 
main  departments  of  a  fully  exj)anded  legal  system  to 
form  themselves.  The  formation  has  to  proceed  slowly 
and-  almost  tentatively,  and  often  in  a  crooked  and 
tortuous  fashion.  Sometimes,  as  in  Rome  and  in 
England,  a  large  portion  of  the  legal  conceptions  come 
into  being  through  one  set  of  judicial  processes,  and 
anotlier  large  porticm  through  another  set. 


PROBLEM   AS  TO   THE   PERIOD   FOR   CODIFICATION.      393 

In  all  countries,  as  has  been  seen,  customary  practices, 
prevalent  and  changing  moral  theories,  judicial  idiosyn- 
crasies, and  political  events,  contribute  to  the  composition 
of  the  general  structure  of  the  national  law.  The  experi- 
ence of  one  age  corrects  that  of  another;  improved  moral 
notions  displace  inferior  ones ;  and  growing  social  and 
commercial  intercourse,  between  men  and  between 
nations,  render  innovation  of  the  boldest  sort  from  time 
to  time  quite  indispensable. 

While  this  process  is  actively  proceeding,  the  crystal- 
lization of  the  whole  legal  system  of  the  country  into  a 
code,  even  with  ample  provision  for  amendment,  could 
not  operate  otherwise  than  as  an  arrest  of  the  most 
beneficial  mode  of  growth.  The  question,  then,  is  pre- 
sented whether  this  course  of  changing  conceptions  and 
progressive  enterprise  in  the  field  of  law  is  an  unending 
one,  or  Avhether  a  period  ever  arrives  at  which  it  may 
be  said  that  the  formal  shape  of  the  whole  body  of  law 
has  become  finally  and  definitely  fixed.  Another  question 
lies  close  at  hand,  as  to  whether,  assuming  such  a  period 
has  arrived,  the  nation  can  know  for  itself  that  it  has 
arrived.  In  a  word,  can  a  nation  tell  for  itself  that  the 
2:)eriod  has  arrived  at  which  it  may  safely  proceed  with  the 
codification  of  its  laws  so  as  to  attain  the  greatest  amount 
of  gain,  and  to  encounter  the  least  loss  possible  ? 

If  the  theory  which  has  been  advocated  throughout 
this  work  be  a  sound  one,  to  the  effect  that  a  nation 
is  constituted  out  of  a  number  of  definite  and  ascertain- 
able groups,  and  that  the  purpose  of  law  is  to  give  reality 
and  cohesion  to  these  several  groups  on  the  one  hand, 
and,  on  the  other,  to  ascertain  their  mutual  relations  to 
each  other  and  to  the  State  as  a  whole,  then  the  answer 
to  the  first  of  these  questions  becomes  tolerably  ready. 
So  soon  as  ever  all  the  groups  are  completely  evolved, 
their    perpetuity    and    distinctness    from    one    another 


o04<  TRUE   PERIOD   FOR   CODIFICATION. 

secured,  and  their  bearings  in  respect  to  the  whole 
organization  of  the  State  precisely  determined,  the  main 
steps  in  the  growth  of  law  are  accomplished. 

It  is  true  that  law  may  yet  have  to  undergo  the  most 
important  alterations  in  order  to  clear  it  from  all  the 
obstructions,  the  anomalies,  the  incongruities,  the  anti- 
quarian curiosities,  which,  in  the  course  of  generations  of 
struggle,  have  adhered  to  it.  But  this  task  of  formally 
adapting  law  to  the  actual  social  conditions  around  is  a 
tolerably  rapid  and  easy  one,  so  soon  as  ever  an  enthusi- 
astic spirit  of  reform  is  fairly  roused.  How  rapid  and 
comparatively  easy  is  that  task,  under  such  favouring 
circumstances,  is  sufficiently  illustrated  by  the  example 
of  what  was  done  at  Rome  in  the  time  of  Augustus, 
of  the  Antonines,  and  of  Justinian ;  in  France  during 
the  first  revolution ;  and  in  England  in  the  early  part 
of  this  century,  after  the  close  of  the  French  war.  Thus 
it  may  be  said  broadly  that  there  is  a  halting-place  in 
the  progress  of  every  nation  at  which  the  chief  and 
final  lineaments  of  the  legal  system  admit  of  being 
formally  determined,  though,  of  course,  endless  oppor- 
tunity must  survive  for  detailed  modifications  and  even 
radical  innovations. 

The  other  question,  as  to  the  competency  of  a  nation 
to  judge  for  itself  whether  the  halting-stage  here  described 
has  yet  arrived,  can  be  answered  with  equal  facility. 
The  answer  for  any  particular  nation  must  depend  on 
the  degree  of  development  to  which  the  conscious 
reflection  on  the  nature  of  law  shall  have  attained  in 
that  nation.  If  the  essential  elements  of  the  complete 
national  life  have  been  correctly  calculated,  and  if  the 
state  of  the  national  law,  as  addressed  to"  the  support 
and  nutrition  of  those  elements,  has  been  critically 
surveyed,  there  seems  to  be  no  reason  why  a  definitive 
conclusion  should  not  be  drawn  as  to  whether  the  law 


SPECIAL   DEMAND   FOR   CODIFICATION.  395 

has  or  has  not  as  yet  conformed  itself  to  the  conditions 
needed  to  justify  codification. 

But,  even  if  the  time  properly  and  generally  adapted 
to  codification  shall  not  yet  have  arrived,  there  may  be 
special  circumstances  to  justify  the  anticipation  of  that 
time.  It  may  happen  that  all  further  development  in  the 
legal  system  is  hampered  and  clogged  by  the  rugged  and 
obscure  condition  of  the  authorities  to  which  reference  is 
made  in  order  to  know  the  state  of  the  law.  It  is  quite 
possible  that  these  authorities  may  be  so  obscure,  so 
multifarious,  so  contradictory,  that  either  total  anarchy  is 
the  result,  or  a  technical  and  traditional  system,  wholly 
out  of  all  living  connection  with  the  people  and  their 
requirements,  is  handed  down  from  one  generation  of 
judges  to  another,  and  is  servilely  acquiesced  in,  and 
even  lauded,  by  a  narrow-minded  legal  profession. 

Such  was  the  condition  of  the  common-law  in  England 
at  the  time  that  Bentham  was  so  loud  in  his  demands  for 
codification.  The  rapid  course  of  legislative  reform  since 
his  day,  to  which  allusion  has  already  been  made,  has 
tended  to  rest  the  demand  for  codification  on  broader 
and  deeper  grounds  than  those  on  which  he  rested  it. 

Thus  it  appears  that  a  premature  codification  may 
sometimes  be  properly  brought  about  as  a  substitute  for 
anarchy,  and  as  a  refuge  from  dangers  greater  than  any 
which  attach  to  itself  Most  people,  for  instance,  will 
admit  that  the  codification  of  the  French  laws,  at  the 
time  it  was  proceeded  with,  was  an  indispensable 
necessity;  though  they  will,  on  reflection,  probably 
confess  that,  had  the  composition  of  a  code  been  waited 
for  till  the  effects  of  the  revolution  had  fully  penetrated 
every  portion  of  French  society  and  given  it  its  final 
shape,  the  code  then  made  would  have  been  better  and 
more  useful  than  the  code  now  in  existence. 


CHAPTER  XIV. 

LAW  AND  GOVERNMENT. 

There  is  yet  another  important  aspect  of  law  whicTi, 
thougli  necessarily  glanced  at  in  the  earlier  chapters  of 
this  book,  yet  still  remains  to  be  investigated  with 
precision.  This  aspect  is  the  one  in  which  law  is  pre- 
sented when  it  is  regarded  merely  as  a  means  of  govern- 
ment, or  as  what  may  be  called,  in  a  large  sense  of  the 
expression,  a  political  instrument.  In  order  to  give 
practical  value  to  the  investigation,  the  question  must  not 
be  proposed  in  too  abstract  a  form ;  but,  in  speaking  of 
government,  the  form  of  government  to  which  all  modern 
States  are  gravitating  with  a  constantly  accelerated 
velocity  must  be  kept  in  view  throughout.  This  form  is 
undoubtedly  the  democratical, — if  it  be  allowed  to  use 
the  term,  neither  in  an  euphemistic  nor  dyslogistic  sense, 
but  simply  as  descriptive,  that  is,  m  the  sense  intended 
by  the  late  M.  de  Tocqueville.  It  remains,  then,  to 
examine  what  is  the  position  occupied  by  law  in  relation 
to  government,  as  becoming  constantly  more  and  more 
democratically  constituted. 

It  was  noticed  in  an  early  part  of  this  woi'k  that  the 
activity  of  government  is  twofold  in  character.  One 
portion  of  this  activity  is  displayed  in  administration, 
that  is,  in  selecting  a  vast  hierarchy  of  persons  to  perform 


ADMINISTRATION   AND   LEGISLATION.  S97 

definite  work ;  in  marking  out  the  work  of  all  and  each  ; 
in  taking  such  measvires  as  are  necessary  to  secure  that 
the  work  is  really  done ;  and  in  supplying  from  day  to 
day  such  corrections  or  modifications  as  changing 
circumstances  may  seem  to  suggest.  This  task  is  of  the 
highest  degree  of  importance,  and,  in  a  very  primitive 
condition  of  society,  represents  the  largest  portion  of 
governmental  action.  In  a  very  complete  and  advanced 
condition  of  society,  again,  the  task  ef  administration  is 
one  of  inordinate  magnitude  and  difiiculty,  but  it  is 
only  a  very  subordinate  agency  in  the  whole  process  of 
government. 

The  rival  agency  is  that  of  legislation,  or  the  formu- 
lating of  general  rules,  addressed  to  all  persons,  or  to 
certain  classes  of  persons  in  the  community,  and  directing 
their  actions  in  certain  ways  specified  in  the  terms  of  the 
rule.  In  the  place  of  the  incessant  supervision  implied 
in  administration,  the  persons  to  whom  these  rules  are 
addressed  are  left  to  themselves,  and  only  interfered  with 
after  the  rules  are  broken.  A  large  class  of  functionaries, 
judicial  and  executive,  are  called  into  being  for  the  pur- 
pose of  ascertaining  whether  these  rules  are  conformed  to 
or  not ;  if  not,  who  it  is  who  fails  to  conform  to  them ; 
of  punishing  such  refractory  persons ;  and  of  publicly 
expounding  the  true  meaning  of  these  rules,  should 
doubts  in  reference  to  this  meaning  arise  in  any  quarter. 
It  is  obvious  that  these  important  rules, — the  ultimate 
operation  of  which  is  thus  removed  from  the  immediate 
eye  of  the  legislator,  and  in  the  general  character  of  which 
public  liberty  is  so  deeply  concerned, — must  call  for  the 
most  anxious  reflection  and  the  balancing  of  innumerable 
considerations. 

It  is  at  this  point  that  the  characteristic  difference 
between  a  despotical  or  aristocratical,  and  a  democratical 
form  of  Government  tells  upon  the  peculiar  difficulties 


898  -  LAW  AND   GOVERNMENT. 

tliat  are  inherent  in  the  enactment  of  laws.  The  more 
democratic  is  the  condition,  the  more  numerous  are  the 
persons  who  have  to  assent  to  the  passing  of  the  law, 
and  the  greater  are  the  expectations  entertained  by 
the  population  generally  of  thoroughly  comprehending 
the  import  of  every  law  that  is  passed.  The  political 
consequences  of  this  state  of  things  are  momentous, 
though  some  of  them  are  more  obviously  beneficial  than 
others.  But  the  strictly  legal  consequences,  which  are 
immediately  relevant  here,  are  also  very  noticeable. 

One  of  such  consequences  is  that,  inasmuch  as  the 
passing  of  every  law  involves  the  assent  of  a  large  number 
of  persons,  a  quantity  of  time  must  be  occupied,  on  all 
occasions  on  which  the  policy  or  language  of  the  proposed 
law  are  open  to  question,  with  controversy,  criticism,  and 
lengthened  expositions  of  the  circumstances  which  seem 
to  recommend  or  discountenance  the  adoption  of  the  law. 
The  results  are  the  following : — First,  in  default  of  special 
devices  to  secure  logical  unity  in  the  framework  of  laws 
(such  as  by  referring  every  suggested  amendment  to* a 
permanent  legislative  commission  for  incorporation  in  the 
body  of  the  law  originally  proposed),  the  varieties  of 
opinion  which  have  characterized  the  debate  are  likely 
to  reappear  in  the  structure  of  the  law  itself,  and  so  at  a 
later  stage  to  perplex  the  judicial  consideration  of  what 
was  its  policy  and  meaning.  The  fact  is,  a  law  so  con- 
structed out  of  a  number  of  compromises,  and  allowed  to 
survive,  if  at  all,  only  at  the  price  of  most  of  what  its 
author  held  to  be  its  essential  features,  cannot  be  said  to 
have  any  definite  policy  ;  and  to  speak  of  the  "  legislator  " 
or  even  the  "  legislature,"  as  though  the  law  flowed  from 
a  single  responsible  and  morally  constituted  being,  is, 
under  a  system  of  representative  government,  a  scarcely 
appropriate  form  of  diction. 

Another   result   of  the   tedium   and   difficulty  with 


DELEGATED  LEGISLATION.  899 

which  disputable  laws  are  enacted  in  a  democratically 
constituted  assembly  is  that  it  becomes  necessary  to 
delegate  as  much  legislation  as  possible  to  subordinate 
authorities.  There  are  many  grounds  for  resorting  to 
such  subordinate  legislation  besides  that  of  convenience 
or  necessity;  but  the  tendency  must  be  to  multiply 
subordinate  legislation,  even  in  cases  where  no  other 
considerations  recommend  it  than  the  impossibility  of  the 
central  legislature  otherwise  getting  through  the  business 
of  the  year. 

The  danger  is  that  the  choice  between  what  properly 
belongs  to  the  central  body  and  what  may  suitably  be 
left  to  subordinate  bodies  in  dependence  on  the  central 
body  will  be  determined  rather  by  accident  or  caprice 
than  by  principle.  Thus  there  will  be  always  a  tempta- 
tion presented  to  an  assembly  of  popular  representatives 
to  avoid  taking  action  in  matters  upon  which  it  is  known 
great  difference  of  opinion  exists,  and  in  respect  of  which 
inflammatory  feelings  are  aroused  in  all  parts  of  the 
country.  It  is  easier  to  avoid  making  enemies  or  losing 
friends  by  simply  throwing  the  matter  back  on  the 
people  themselves.  And  yet  this  may  imply  a  gross 
dereliction  of  governmental  duty.  The  matter  may  be 
one  as  to  which  a  numerical  majority  of  the  people 
outside  the  assembly  has  no  claim  to  overbear  the 
smallest  minority ;  or  as  to  which  unity  of  action  through- 
out the  country  is  of  more  impo-rtance  than  unity  of 
opinion ;  or  as  to  which  absence  of  legislation  is  even 
worse  than  wrong  legislation.  In  such  circumstances  as 
these  the  facility  of  simply  ignoring  the  duties  of  a 
legislature,  by  handing  over  difficult  topics  to  Local 
Boards,  is  to  be  noted  as  one  of  the  perils  inherent  in 
democratic  government. 

The  real  value  of  subordinate  legislation,  as  practised 
in  England,  by  Local  Boards,  by  School  Boards,  by  Town 


400  LAW   AND   GOVERNMENT. 

Councils,  by  Committees  of  the  Privy  Council,  and  even, 
under  restrictions,  by  the  heads  of  the  Police  force,  is 
indisputable,  and  may  be  regarded  as  one  of  the  most 
precious  of  modern  political  discoveries.  Indeed,  it  is 
not  easy  to  see  how,  apart  from  a  large  resort  to  this 
method  of  legislation,  the  joint  purpose  of  disburthening 
the  central  legislature  of  needless  business,  and  of  inviting 
the  co-operation  of  the  people  at  as  many  points  as 
possible  in  the  task  of  governing  themselves,  could 
possibly  be  achieved. 

A  check  on  the  unbridled  extension  of  this  form  of 
legislation  is  suggested  by  the  perils  to  public  liberty 
involved  in  the  comparative  secrecy  of  local  legislation, 
and  in  the  difficulty  of  bringing  general  public  opinion  to 
bear  upon  abuses  occuiTing  either  in  the  process  of 
making  or  in  that  of  executing  the  law.  Other  checks 
are  suggested  by  the  comparative  incompetence  of  local 
authorities  to  take  a  large,  far-sighted,  and  well-pro- 
portioned, view  of  the  interests  at  stake,  and  the 
inconvenience  of  having  different  systems  of  management 
prevailing  in  different  parts  of  the  country  perhaps 
closely  adjoining  each  other. 

One  consequence  of  the  popular  conditions  which 
Government,  in  modern  times,  has  to  satisfy,  is  highly 
onimous  to  the  character  of  law.  This  consequence  is  the 
sort  of  irregular  interference  which  the  process  of  making 
law  encounters  at  the  hands  of  the  mass  of  the  people 
at  large.  In  a  democratically  constituted  State,  the 
people  are  properly  not  content  with  choosing  their 
representatives  from  time  to  time  once  for  all,  and  then 
remitting  to  them  the  whole  labour  and  responsibility  of 
makinof  the  laws.  The  means  of  communication  and 
information,  which  are  essential  elements  in  the  social 
condition  of  modern  States,  result  in  bringing  the  daily 
debates  of  the  Legislative  Assembly  under  the  ej^es  and 


NEED   OF   POPULAR  CO-OPERATION,  401 

watchful  criticism  of  the  whole  people.  These  means  of 
communication  also  bring  to  the  knowledge  of  each  other 
those  who,  in  different  parts  of  the  country  and'  otherwise 
isolated,  are  of  the  same  mind  with  respect  to  the  laws 
they  wish  to  enact  or  change,  and  who  thereby  assume 
the  character  of  a  large  and  significant  confederation. 
The  result  is  of  an  ambiguous  character,  partly  good 
and  partly  evil,  the  proportions  of  the  good  and  the  evil 
being  determined  by  the  amount  of  education  and 
political  self-control  of  the  people. 

In  a  large  and  higlily  organized  State,  liable  to  suffer 
inordinately  from  even  a  few  hours  of  general  lawlessness, 
and  to  feel  even  the  occasional  recklessness  of  a  few 
of  its  members  as  a  heavy  calamity,  it  is  of  the  utmost 
importance  that  the  people  as  a  whole  should  not  only 
understand  the  law,  but  should  zealously  co-operate  with 
its  execution.  The  attainment  of  this  result  becomes 
increasingly  difficult,  because  the  larger  and  the  wealthier 
is  the  State,  the  greater  is  the  certainty  (under  present 
conditions  of  society)  that  it  will  contain  among  its  mem- 
bers not  a  few  who  mostly  look  for  their  subsistence  to 
abusing  the  general  confidence  produced  by  law.  On 
all  these  grounds  it  is  now  a  recognized  part  of  the 
policy  of  all  States,  not  ostensibly  possessed  of  a  despotical 
or  aristocratical  constitution,  to  do  their  utmost  to  meet 
the  wishes  of  the  whole  people  in  the  enactment  of  law. 

Two  difficulties  are  here  presented.  One  is,  that  it 
is  hard  to  invent  a  test  by  which  the  wish  of  the  whole 
people  shall  be  distinguished  from  that  of  a  large  and 
tumultuous  fraction  of  the  people.  No  sufficient  test 
can  really  be  imagined.  The  tests  of  numbers,  of  educa- 
tion, of  rank,  of  wealth,  of  uproar,  are  all  either  inap- 
plicable under  the  circumstances  or  else  absurd.  The 
comments  of  the  daily  press,  in  countries  where  it  is 
perfectly  free,  are,   no  doubt,  held  by  statesmen  as  an 


402  LAW  AND   GOVERNMENT. 

element  in  ascertaining  the  general  inclination  of  public 
opinion ;  but,  as  often  as  not,  it  is  the  press  which  makes 
the  opinion  rather  than  the  prevalence  of  the  opinion 
which  tinds  expression  in  the  press. 

In  this  uncertainty  of  a  test  for  estimating  public 
bias,  an  open  field  is  presented  for  the  manufacture  of 
factitious  and  spurious  counterfeits  of  a  true  and 
popular  conviction.  The  majority  of  the  population  (as 
things  are  at  present, — and  for  a  long  time  to  come  no 
essential  change  can  take  place  in  this  respect)  have  in 
ordinary  times  no  political  convictions  at  all.  They  are, 
therefore,  easily  open  to  moral  pressure  from  the  first 
persons  of  strong  convictions  who  solicit  them  for  their 
aid  and  sympathy. 

There  are  large  classes  of  laws — especially  those  which, 
by  a  favourite  modem  extension  of  the  province  of 
Government,  touch  upon  the  moral  habits  and  the 
physical  health  of  the  people — w^hich  affect  one  class  or 
order  of  persons  in  the  community  in  a  diff'erent  way,  or 
to  a  different  extent,  from  that  in  which  they  affect  aU 
the  rest.  Thus,  for  instance,  in  many  countries  laws  have 
been  enacted,  or  have  been  called  for,  affecting  solely  the 
sellers  of  certain  wares,  or  those  belonging  to  certain 
trades  or  professions,  or  those  earning  their  livelihood  in 
certain  definitely  described  ways. 

The  persons  who  are  specially  or  immediately  in- 
terested in  the  enactment,  the  modification,  or  the  repeal, 
of  such  laws  as  these,  are,  at  the  first,  only  a  small 
section  of  the  population.  But  they  thoroughly  com- 
prehend the  subject,  or,  at  least,  one  side  of  it — the  one 
nearest  to  themselves.  They  are  ready  with  all  the 
arguments  Avhich  tell  in  their  own.  favour,  whether 
real  or  fallacious.  They  may  be,  and  are  likely  to  be, 
sufficiently  at  leisure  to  be  distracted  by  no  considera- 
tions of  ulterior  policy  or  interests  other  than  their  own. 


FANATICAL  DEMANDS  FOR  LEGISLATION.  403 

or  what  tliey  have  taken  up  as  their  own.  Steady  con- 
centration of  mind  on  a  single  order  of  topics  enhances 
the  original  narrowness  of  view,  and  favours  the  genera- 
tion of  a  vehement  condition  of  feeling.  Here  are 
gathered  up  all  the  elements  of  an  unreasoning  and 
selfish  fanaticism. 

This  fanaticism  is  none  the  less  dangerous  because 
it  is  often  cloaked  in  the  becoming  garb  of  scientific 
wisdom,  and  because  it  simulates  (perhaps  unconsciously 
and  innocently)  a  sole  regard  for  the  general  .good. 
What  is  here  relevant,  however,  is  that,  in  estimating  the 
weight  of  an  alleged  popular  demand  for  legislation,  the 
frequent  existence  of  a  fanatical  cry  for  legislative 
changes  is  -one  of  the  most  misleading  of  indications.  It 
is  only  as  the  people  become  better  educated  and  less 
servile  to  the  leadings  of  the  press,  the  platform,  and  the 
parade  of  scientific  statistics,  that  they  can  be  safely 
trusted  to  prescribe  to  legislators  duties  from  day  to 
day,  and  can  be  allowed  to  interfere  at  every  moment  in 
the  process  of  enacting  laws.  But  even  then  the  position 
of  a  trained  statesman — bound  as  he  is  to  consider  the 
far  future  as  well  as  the  past,  the  distant  as  well  as  the 
near,  and  to  weigh  in  an  accurately  adjusted  balance  the 
merits  of  competing  considerations  borrowed  from  all 
parties — must  always  entitle  him  to  resist  a  popular 
outcry,  however  vehement  and  however  persistent.  That 
people  is  the  greatest  which  can  rear  out  of  its  midst 
a  race  of  statesmen  who  will  be  its  faithful  servants,  and 
neither  its  masters  nor  its  slaves. 

It  is  for  the  statesman  to  interpret  the  genuine  voice 
of  the  people,  and  to  distinguish  between  a  mere  selfish 
and  ignorant  cry  and  the  solemn  promptings  of  an 
awakened  national  conscience.  He  must  possess  an  in- 
fallible touchstone  by  which  to  discover,  among  competing 
parties,  who  are  the  true  fanatics.     He  will  attiibute  at 


-tO-i  LAW   AND   GOVERNMENT. 

least  as  much  weight  to  a  clearly  expressed  and  fairlj^ 
ascertained  popular  judgment,  as  to  a  well-reasoned 
scientific  conclusion.  He  will  be  as  ready  to  retrace  his 
steps  when,  by  an  accidental  step  in  legislation,  he  finds 
he  has  outraged  a  sound,  healthy,  and  common  sentiment, 
as  determined  to  persist  when  he  is  persuaded  the  laws 
he  supports  are  in  harmony  with  such  a  sentiment. 

There  is  yet  another  aspect  in  which  law  must  be 
regarded  when  treated  as  an  instrument  of  Government. 
So  soon  as  a  law  is  made,  and  lifted  out  of  the  region  of 
controversy,  it  begins  to  exercise  a  moral  influence,  which 
is  no  less  intense  and  wide-spreading  for  being  almost 
imperceptible.  Though  law  can  never  attempt  to  forbid 
all  that  is  morally  wrong,  yet  that  gets  to  be  held  to  be 
morally  wrong  which  the  law  forbids. 

Similarly,  whatever  law  recognizes  and  provides  for 
is  regarded  (it  may  be  insensibly  and  only  by  very 
gradual  steps)  as  morally  right.  It  is  almost  a  necessary 
habit  of  thought  to  regard  the  State  as  a  moral  being, 
possessed  of  a  will,  a  conscience,  and  moral  responsibility. 
There  is  no  need  here  to  trace  the  order  of  thought  by 
which  this  popular  and  universal  conception  grows  up. 
It  is  sufiicient  to  allege  the  existence  of  it  as  a  fact,  and 
to  deduce  the  consequences  of  it.  In  obedience  to  this 
conception,  law  becomes  accepted  as  the  expositor  of  the 
national  conscience,  and  the  language  of  law  as  one  of 
the  readiest  tests  of  the  inherent  riohtfulness  or  wi'ong- 
fulness  of  actions.  In  this  way,  by  a  constantly  advanc- 
ing educational  process,  to  which  the  decisions  of  every 
court  of  justice  are  day  by  day  making  their  contribu- 
tion, the  moral  sentiments  of  the  people  are  gradually 
brought  into  accord  with  the  principles  apparently  con- 
secrated by  law. 

A  law-loving  people  may  criticise,  if  they  have  the 
o])portunity,    a  newly    proposed    law    to    any    possible 


MORAL   INFLUENCE   OF   LAWS,  405 

extent.  But  when  once  it  is  enacted,  tliey  will  not  only 
cheerfully  obey  it,  but,  by  a  peculiar  action  of  the 
imagination,  will  unconsciously  attribute  to  it  a  quasi- 
mysterious  origin,  and  banish  all  memory  of  the  com- 
peting views  of  expediency  amidst  which  it  arose.  Thus 
a  law  of  the  most  ambiguous  value  borrows  the  credit  and 
reverence  which  is  rightly  due  to  the  great  mass  of  the 
laws  side  by  side  with  which  it  is  ranked  ;  and  where 
the  possibiHty  of  practical  resistance  ends,  criticism  is 
likely  enough  to  end  likewise. 

These  considerations  point  to  the  fallaciousness  of 
the  notion  of  making  experiments  in  legislation.  There 
can,  strictly  speaking,  be  no  real  experiments  in  legisla- 
tion ;  first,  because  a  bad  law,  like  some  poisons  when 
taken  into  the  human  system,  at  once  changes  the  nature 
of  the  medium  into  which  it  is  introduced  ;  and  therefore 
the  apparent  success  of  the  law  may  only  mean  that 
what  in  a  healthier  condition  of  society  would  work 
badly  and  be  resisted,  does,  in  a  depraved  condition  ot 
society,  meet  with  general  approval ;  secondly,  because 
some  of  the  results  only,  and  these  the  least  momentous 
ones,  admit  of  being  catalogued  in  a  statistical  form,  while 
all  the  other  results,  however  much  they  permeate  the 
whole  of  society,  are  far  too  subtle  and  obscure  to  be 
made  the  subject  of  a  quantitative  estimate.  It  is 
obvious  that  these  remarks  apply  with  much  greater 
force  to  some  kinds  of  laws  than  to  other  kinds ;  with 
very  little  force,  perhaps,  to  some  of  the  laws  which 
merely  regulate  taxation ;  but  with  the  greatest  force  of 
all  to  laws  which,  directly  or  indirectly,  affect  to  curb  or 
regulate  immorality. 

Lastly,  law,  when  regarded  as  an  instrument  of 
government,  must  be  treated  as  a  necessary  fact  among 
all  those  facts  of  human  existence  and  physical  nature 
by   which   the   character   of   the    individual   man    and 


•iOG  LAW  AND  GOVERNMENT. 

woman  is  perfected.  The  individual  human  being  can 
only  discover  for  himself  his  aim,  his  vocation,  and  the 
true  use  of  his  faculties  by  association  with  others. 
It  is  out  of  this  association,  first,  in  the  primitive 
family,  then  in  the  primitive  State,  and  then  in  that 
higher  form  of  the  State  in  which  the  competing  claims 
and  functions  of  State  life,  family  life,  and  individual 
life,  are  reconciled  and  mutually  adjusted,  that  human 
nature  attains  its  true  proportions.  But  this  process  of 
growth  is  not  achieved  without  personal  and  national 
mishaps  of  all  sorts,  delusive  adventures,  disappointments, 
mistakes,  and  disastrous  calamities.  Nevertheless,  the 
growth  advances  and  man  remains  ever  steady  to  his 
aim.  That  which  steadies  him  and  keeps  him  firm  to 
his  conscious  or  unconscious  purpose,  protecting  all  men 
against  the  imperfection  of  each,  and  protecting  each 
against  the  pressure  of  all — kind  and  yet  unflinching, 
personating  the  past,  the  present  and  the  future — 
imperiously  addressing  all  and  yet  whispering  to  each — 
is  law. 


INDEX. 


Accessories,  theoretical  aspect  of, 

250. 
Accident,  as   operating  on  Inten. 

tion,  110. 
Act,  definition  of  legal  term,  101. 

various  popular  uses  of  tlie 

term,  100. 

Acts,  relation  of,  to  Will  and   to 

Events,  101. 
Administration,    as    part    of    the 

function  of  Government,  397. 
Adoption,  Roman    practice  of,   as 

affecting  the  Family  group,  130. 
Advocacy,  nature  and  morality  of, 

311.313. 
Agency,  nature  and  legal  incidents 

of,  224,  225. 
Anglo-Indian  Codes,  use  of  defini- 
tions and  illustrative  cases  in,  65. 
Appeal,  grounds    for  constituting 

Courts  of,  313,  314. 
Arbitration,  prevalent  indisposition 

to,  348. 
■ real  obstacles  to,  349, 

350. 
value    of  theories    of, 

347,  358. 
Assurance,   nature   and  policy  of 

Contracts  of,  225,  226. 
Attempts  to  commit  crimes,  theory 

of  punishing,  254. 
Austin,  estimate    of    his    qualifi- 
cations, 4,  5. 

founder  of  the  Science  of 

Law,  4. 

his  notes  respecting  Dolus 


and  Malice,  245. 


B 


Bail,    theory    of,    and    problems 
relating  to,  264,  265. 

Balance    of    Povrer,    influence    of 
doctrine  of,  346. 

Bankruptcy,   notion  of,    and   pro- 
ceedings in,  209. 

Bentham,   his    characteristic   me- 
thod, 3. 

his  view  of  the  relations 

of  Law  and  Morality,  3. 

his  influence  on  English 


Law,  7,  8. 

testimony   of,   to   excel- 


lence of  English  Law,  381,  382. 

Bluntschli,  Professor,  his  Code  of 
International  Law,  343. 

Burden  of  Proof,  problems  respect- 
ing, 300,  301. 


C 


Capitai,  Punishment,  difficulties 
attending  the  use  of,  271. 

Cessio  Bonorum,  nature  of  the 
Soman  remedy  of,  209. 

Character,  grounds  for  allowing 
production  of  Evidence  of,  287. 

Child,  situation  of  a,  in  respect  of 
Intention,  105,  106. 

Children,  limitations  on  Eights  of 
Ownership  by,  161. 

Chivalry,  its  functions  in  the  de- 
velopment of  International  Law, 
335. 

Chuich,  nature  of  the  Established, 
in  England,  136. 


408 


INDEX. 


Cliurcli,  various  forms  of  an  Estab. 

lished,  135,  136. 
Circumstantial  EAadence,  meaning 

of,  as  opposed  to  Direct,  304. 
Civil  Injui-ies,  distinctio'n  between 

Crimes  and,  229,  235. 
theoretical   view  of, 

290.293. 
Civil   Procedure,  account    of    the 

law  of,  290,  seq. 
Classification,  purpose  of,  in  Codi. 

fication,  375. 
Clauses,  Interpretation,    functions 

of,  in  reference  to  Interpretation, 

65. 
Code,  various  uses  of  term,  366. 
Code    Civil,   provision  in  the,  for 

insufficiencies  in  the  law,  71'. 
Code    Na2}oIeon,  the,  in  reference 

to  the  word  chose,  86,  87. 
Codes,  influence    of    modern,   on 

Science  of  Law,  10,  11. 
Codes    of  International    Law,   ac- 
count of  modern,  343,  357,  358. 
Codes,  use  of  Definitions  and  Illns- 

ti'ative    cases  in    Anglo-Indian, 

66. 
Codification,  a  mode  of  Statutory 

Legislation,  75,  76. 
general     account    of 

Theories  of,  360,  seq. 

■  various  uses  of  term, 


366. 
Cognitiones  extraordinarice,  theory 

of  the  Roman,  297,  298. 
Combination    Statutes,   policy    of 

English,  212,  213. 
Commands,  relation  of,  to  laws,  23, 
Commentators,    influence     of,    on 

judicial  legislation,  67,  69,  70. 
Commerce,    theory    and    use  —of 

Tribunals  of,  315,  316. 
Common  Law,   English,    doctrines 

of,   as   illustrating    the    growth 

and  compass  of  Law,  390. 
in  relation 

to  the  history  of  the  Science  of 

Law,  6,  7. 
mode     of 


development  of,  63. 
Communism,         misapprehensions 

respecting,  159. 
Compensation,  as  contrasted  with 

Punishment,  37. 


Conceptions,   elementary    account 

of,  77,  seq. 
Conspiracy,  comment   on  Englisli 

Law  of,  255,  256. 
Constructive    Fraud,  meaning    of 

doctrine  of,  199 
Conflict  of  Laws,  influence  of  the, 

on  Science  of  Law,  12,  25-28. 
problems         pre- 

sented  by  the,  318-321. 
Conscience,    growth     of,    as     an 

element  ctf  Morality,  32. 
Consideration      for      a     Contract, 

meaning  of  expression,  204. 
Constitutional      Law,      anomalous 

characteristics  of,  16. 
Contract,  account  of  Law  of,  190. 

analysis  of  a  legal,  195. 

capacity   for  making  a, 

199. 


distinction    between     a, 

and  a  Conveyance,  219,  22  0 
—  Fox-m  and  Evidence  of  a. 


200.203. 
growth  of  legal  concep. 

tion  of,  94. 

Marriage  as  a,  217. 

meaning  of  "  considera. 


tion"  for  a,  204. 

Nature    and    Origin    of. 


191,  192. 


221. 


relation  of,  to  Obligation, 

Sale  as  a,  218. 

Contracts,  Immoral,  196. 
"imjilied,"     nature   of, 

216. 
Crime,  real  test  of  a,  96. 
Sir  H.  S.  Maine's  account 

of  Primitive  Law  respecting,  230. 
distinction  between  Moral 


and  Legal  notion  of  a,  236. 

•  distinction  of  a,  from  a  Civil 


Injury,  234,  235. 
elements    in    determining 


Punishments  for,  39. 

essential  notion  of  a,  232. 

grounds      for       pardoning 


Political,  41. 
Crimes  in  relation  to  Rights,  96. 
policy    of      punishing   At- 

tempts  to  commit,  254. 

policy   of    punishing   Con- 


current,  256. 


INDEX. 


409 


Crimes,   primitive   relation   of,   to 

Civil  Injuries,  229. 
theory  of  modes  of  punish. 

ing,  278-288. 

what  acts  are  stvled,  14. 


Contraventions,  place  of,  in  French 
Code,  257. 

Conveyance,  relation   of,  to   Con- 
tract,  219,  220. 

or  Transfer,  theoreti- 
cal nature  of  a,  182. 

CopjTight,  how  fai-  strictly  a  Eight 
of  Ownership,  168. 

Costs,  theory  of,  317. 

Courts,  distribution  of,   according 
to  business,  315. 

grounds     for     distributing 

into  Superior  and  Inferior,  314. 

Courts  of  Appeal,  grounds  for  con- 
stituting, 313,  314. 

Criminal  Law,  account  of,  228,  seq. 

—. Eesponsibility,  as  affected 

by  Age,  106. 

Cross-examination,      nature      and 
value  of  practice  of,  307. 

Custom,  conversion  of,  into  Law, 
50,  51. 

Sir  H.  S.  Maine  in  refer. 

ence  to,  49,  50. 

theory  of,  49. 


Customary  Law,  how  it  grows,  389. 

theory  of,  326. 

Svstems  of  France,  as 


illustrating  the  growth  and  com. 

pass  of  Law,  390. 
Customs,  account  of,  in  reference 

to  Codi6cation,  360. 
adoption   of,  a  mode   of 

Judicial  Legislation,  67,  68. 

relation  of,   to   a   Code, 


391. 


Sir    H.     S.     Maine    on 


primitive,  193, 


Damages,  modes   of  assessing,  in 

Contract,  214. 
nature  of   Exemplary  or 

Vindictive,  211. 
Death,  a  fact  provided  for  by  Law, 

183,  184. 


Definitions,  a  mode  of  avoiding  the 
necessity  of  Interpretation,  65. 

purpose  of,  in  Codifi- 
cation, 374. 

-  use  of,  in  the  Digest, 


66. 
Delicts,    distinction   between,  and 

Crimes,  229-235. 

• theoretical  view  of,  290.292. 

Democratical  fonn  of  Government, 

as  affecting  Law,  396,  397. 
Depositions  of  witnesses  taken  out 

of   Court,  practice  of  receiving, 

306. 
Digest,  meaning  of  a,  as  opposed 

to  a  Code,  367,  368. 
Diligence,  estimate    of,    in    Con. 

tracts,  207. 
nature  of,  as  related  to 

Intention,  116. 
Direct   Evidence,   meaning  of,  as 

opposed  to  Circumstantial,  304. 
Discretionary  Punishments,  theory 

of,  39,  286. 
Divorce,  problems  for  the  Legisla. 

tor  in  respect  of,  125. 
Dolus,  analvsis  of  notion  denoted 

by  term,'243.245. 
Mr.  Austin's  notes  in  refer- 

ence  to,  245. 
Drunkenness,  as  affecting  imputa- 

bility,  109. 
Dudley  Field,  Mr.,  his   Code  of 

International  Law,  343. 
Duty,  Analysis  and  History  of  the 

Legal  term,  88-97. 
definition  of  legal  term,  97. 


Easements,  classification  of,  172. 
nature  of  "  Negative," 

172. 
nature  of  "  Positive  " 

or  "  Afi&rmative,"  172,  187. 

nature  of,  as  subjects 


of  Ownership,  169,  171,  186. 
Emancipation,  Eoman  practice  of, 

as    affecting   the    Familv  grouji, 

130. 
Endowments,  English     modes     of 

providing  against  abuses  in,  139. 


410 


INDEX. 


Endowments,  nature,  varieties,  and 

policy  of,  137-140,  165. 
English  Common  Law,  doctrines  of, 

as  illustrating  growth  and  com. 

pass  of  Law,  390. 
English  Law,  general  characteris- 
tics and  history  of,  382,  383. 
Equity,    a    constantly     recurrent 

phenomenon,  56-58. 
as  a    method  of  adjusting 

Laws,  35,  36,  56. 
functions  of,  in  developing 

early  Law,  56. 

fusion  of  Law  and,  56. 

historical    relations   of,   to 

Law,  in  England,  380. 

history  of  English,  34,  35. 

older  sense  of  the  term,  34. 

true  nature  of  English,  56. 


Events,  nature  of,  as  contrasted 
with  Acts,  101. 

Evidence  in  the  shape  of  Confes- 
sions by  the  Accused,  treatment 
of,  275-278. 

meaning  of    Direct  and 

Circumstantial,  304. 

Hearsay,  305. 

■  of  Character,  grounds  for 


allowing  production  of,  287. 

of  Experts,  problems  re- 


lating to  the,  309. 
of   prisoner  excluded  in 

England,  274. 
principle  and  grounds  of 

excluding,  302. 

theory  of  rules  of,  299. 

Exculpation,  theory  and  grounds 

of,  246-250. 
Executors     and      Administrators, 

theoretical  functions  of,  in  Eng- 
land, 184. 
Executive,  the,  as  vested  with  the 

Prerogative  of  Pardon,  41 . 
Exemplary   Damages,    nature    of, 

211. 
Experts,  problems  relating  to  Evi. 

dence  of,  309-311. 
Extenuating  circumstances,  theory 

and  value  of  French  verdict  of, 

270,  271. 
Extensive  Interpretation,  meaning 

of,  66,  67. 
Extradition   Treaties,   theory  and 

policy  of,  263. 


Family,  Law  in  relation  to  the,  117, 

124,  seq. 
Group,  preservation  of  the, 

an  object  of  Law,  123. 
Felony,  history  of  distinction  be- 

tween,  and  Misdemeanour,  252, 

253. 
Feudalism,  its  influence  in  the  de- 
velopment of  International  Law, 

336. 
Fictions,  function  of  Legal,  in  de- 
veloping early  Law,  55. 
Foreign   Law,   incorporation  of  a 

mode    of    Judicial    Legislation, 

67,  69. 
*'  Fractional "  Eight,  meaning  and 

illustrations  of  a,  171,  187. 
France,  Customary  Systems  of,  as 

illustrating  growth  and  compass 

of  Law,  390. 
Fraud,   nature  and   operation   of, 

114. 
as  affecting  the  validity  of 

a  Contract,  198,  199. 
Constructive,    meaning   of 

doctrine  of,  199. 
Frauds,  English  Statute  of.  Policy 

of,  202. 
Frederick  II.,   his  Code  only  a 

subsidiary  system,  370,  371. 
forbids 

"  Interpretation  "  of  Laws,  61. 
French  Codes,  numerous  Commen. 

taries  on,  377. 
■ Law,    characteristics    and 

history  of,  383,  384. 
Froude,  Mr.,  his  testimony  to  the 

severity  of  the  English  character, 

274. 


G 

GER^rANY,  effect  on  treatment  of 

Law  of    philosophic   tendencies 

in,  3. 
Government,  as  an   ingredient    in 

the  conception  of  the  State,  122. 
functions  of,    in   the 

creation  of  Law,  6. 

-  in  relation   to   Law, 


122. 


INDEX. 


411 


Government,  relations  of  Lav/  and, 
396,  seq. 

Grammatical  Interpretation,  mean- 
ing of,  66,  67. 

Growth  of  Law,  account  of  the, 
47,  seq. 

Grotius,  influence  of  his  work  in 
the  development  of  International 
Law,  338,  339. 

Guardianship,  in  reference  to  the 
support  of  the  Family  group,129. 


H 

Habeas  Corpus  Act,   nature  and 

policy  of  the  English,  264-266. 
Hcereditas,  function  discharged  by 

the,  at  Eome,  184. 
Hearsay     Evidence,    meaning  of, 

and  problems  as  to  treatment  of, 

305. 
Husband  and  Wife,  principles  for 

ascertaining     the     rights     and 

duties  of,  126. 


Ignorance,  classification  of  forms 

of,  111. 
how  far  treated  as  ex- 


cusable,  112. 
legal 


provisions 


for 


cases  of,  113. 

■ of  Law,  effect  of.  111. 

presumptions  in  re- 
spect of,  110. 

Illustrations,  a  mode  of  avoiding 
the  necessity  of  Interpretation, 
65. 

Impeachment,  Pardon  not  plead, 
able  to  an,  40,  41. 

Implied  Contracts,  nature  of,  216. 

Incorporeal  Thing,  meaning  of 
expression,  86,  167-169. 

India,  British,  Codification  in,  how 
far  a  precedent  for  England,  384. 

. laws   of,     influence 

of,  on  Science  of  Law,  10,  11. 

— Village  Communities  in,  131. 

Indian,  Anglo,  Codes,  use  of  Defini- 
tions, and  Illustrative  cases  in, 
CG,  303,  377. 


Infancy,  Qualifications  of  Intention 

due  to,  105. 
• presumptions  in  favour  of, 

106. 
Insane,  problem  as  to  Punishments 

for  the,  288,  289. 
Insanity,     Judicial     and     Medical 

aspects  of,  108. 
Presumptions  in  respect 

of,  107. 
Intention,  analysis  of,  104,  115. 
modes  of    ascertaining, 

105. 
nature  of,  as  qualifying 

Acts,  103,  115. 
Intercessio,  nature  of  the  Contract 

of,  208. 
International    Law,     account     of, 

322,  seq. 
distinguish- 
able from  Morality,  323,  324. 

influence    of. 


on  Science  of  Law,  11,  12. 
Mr.    Austin's 


theory  respecting,  323,  324. 

Private,  influ- 


ence of,  on  the  Science  of  Law, 
25-28. 

"  Interpretation,"  devices  for 
avoiding  the  necessity  for,  65. 

meaning       of 

"extensive,"  "  restrictive," 
"grammatical,"  and  "logical," 
66,  67. 

"  Interpretation  Clauses,"  a  mode 
of  avoiding  necessity  of  Inter- 
pretation, 65. 

Interpretation  of  Contracts,  modes 
of,  205.207. 

Interpretation  of  Law,  a  perma- 
nent logical  process,  24. 

forbidden 

by  Frederick  II.'s  Code,  61. 

function  of 


Judge  in  reference  to,  62. 

grounds  for. 


59-61. 


• modes     of 

providing  for,  61-65. 
Interrogatories,  practice  of  using 

sworn  answers  to,  as  Evidence, 

306. 
Intestate    Succession,   theoretical 

nature  and  histoiy  of,  183,  181. 


412 


INDEX. 


Judge,  function  of  the,  in  the  In. 
terpretation  of  Written  Law,  62. 

function  of  the,  as  con- 
trasted with  that  of  the  Legis- 
lator, 53,  54. 

function  of  the,  in  assigning 

Punishment,  39. 

Judicial  Authority,  Classification 
of  Law  made  by,  76. 

Jurisprudence,  meaning  of  French 
term,  6i,  64. 

Juiy,  nature  and  policy  of  the  in- 
.   stitntion  of  Trial  by,  267-270. 

Jus  in  personain,  meaning  of  the 
expression,  88,  94. 

Jus  in  rem,  meaning  of  the  expres- 
sion, 88,  94. 

Justinian,  value  of  works  under, 
taken  by,  373. 

Juvenile  Criminals,  problem  of 
punishments  for,  288. 


Land  as  a  subject  of  Ownership, 

166,  167. 

early  property  in,  163. 

LanguaQ-e,  use  of,  as  a  vehicle  of 

Law,  376. 
Law,  criticism    of    Austin's    and 

Bentham's  views  of,  324. 
Constitutional,        anomalous 

characteristic  of,  16, 

Criminal,  account  of,  228,  seq. 

classified   as    made 

by  Legislative  Authoi-ity,  76. 

Customary,  a  permanent  ele- 
ment in  Law,  391. 

Customary,  how  it  gi'ows,  389. 

theory  of  Customary,  326. 

Definition  of  a,  48,  "324. 

.  doctrines   of    English    Com- 

mon,  as  illustrating  growth  and 

compass  of  Law,  390. 
as     an      instrumentality    of 

Government,  122. 
. regarded    as    a    medium    of 

Political  action,  401-406. 
and  Government,  relations  of, 

396,  seq. 


Law,  account  of  the  growth  of,  47. 

English,    influence   of    Ben- 

tham  upon,  7,  8. 

English  Common,  its  relation 

to  the  history  of  the   Science  of 
Law,  6,  7. 

fusion  of,  with  Equity,  56. 

historical     relations     of,    to 

Equity,  in  England,  380. 

English,  general  characteris- 
tics and  history  of,  382,  383. 

Foreign,  incoi'poration  of,  a 

mode    of    Judicial    Legislation, 
67-69. 

French,  Characteristics   and 

History  of,  383,  384. 

of  Civil  Procedure,  account 

of,  290,  seq. 

classified  as  made  by  Judicial 

Authority,  76. 

International,      account     of, 

322,  seq. 
influence   of, 

on  Science  of  Law,  11,  12,  25. 
theory  of  the 

evolution  of,  326. 
distinguish. 

able  from  Morality,  323,  324. 

•  relation  of,  to 


a  Code,  391. 

Mr.  Austin's 

theory  respecting,  323,  324. 

Private,    in. 


fluence  of,  on   Science  of   Law, 
25-28. 

Interpretation  of,  a  permanent 

logical  process,  24,  59. 

confusion  of,  with  Morality, 

2,  29,  375. 

its  true  relation  to  Morality, 

32-34. 
Modes  in  which  it  comes  into 

being,  5. 
of  Nations,  account  of,  322, 

seq. 

of  Nature,  appeal  to  a,  a  mode 

of  Judicial  Legislation,  67,  72-74. 

of  Nature,  function  dis- 
charged by  notion  of,  in  respect 
of  International  Law,  333. 

permanence   of  elements  of, 

23. 
in    reference     to    Ecligious 

Bodies,  133-137. 


INDEX. 


413 


Law,  Roman,  influence  of  study  of, 
on  Science  of  Law,  9,  10. 

as  an  ingredient  of 

French  Law,  384. 

its  contributions  to 


International  Law,  332. 

Science  of,  materials  of,  18. 

in    relation    to    the    State, 

117,  seq. 

Statute,  a  pennanent  element 

in  Law,  391. 

how  far  it  expresses 

the  sentiments  of  the  com- 
munity, 388. 

theories  as  to  the  develop- 
ment of,  21-23. 

Unwi'itten,howit  grows,  388, 

389. 

logical      conflicts 

incident  to  Interpretation  of,  24. 

Principles  are  not 

confined  to,  377. 

Written,  ambiguity  in  mean. 

ing  incident  to,  24. 

Laws,  Conflict  of,  influence  of,  on 
Science  of  Law,  12. 

Moral  influence  exerted  by, 

404. 

Legal  Fictions,  functions  of,  in  de- 
veloping early  Law,  55. 

Profession,    theory    of    the 

existence  of  a,  294,  311-313. 

Legislation,  as  part  of  the  function 

of  Government,  397. 
• fallaciousness    of    the 

notion  of  making    Experiments 

in,  405. 

grounds  and  modes  of 


Judicial,  64-67. 

Local,  dangers  incident 


to  secrecy  of,  400. 

Statutory, 


modes  of,  75,  76. 

Subordinate,  perils  in. 


cident  to  use  of,  262. 

perils 

and  value  of,  399,  400. 

Legislative  Authority,  classification 
of  Law  made  by,  76. 

Legislation,  British  Indian,  influ- 
ence of, on  Science  of  Law,  10, 11. 

Legislator,  functions  of  the,  as 
contrasted  with  those  of  the 
Jud"e,  53,  54. 

15 


Legislator,  meaning  of  expression. 
The,  398. 

Lex  domicilii,  meaning  of  expres- 
sion, 320. 

fori,  320. 

loci  actus,  820 

loci  contractus,  320. 

loci  rei  sitce,  320. 

Libel  Act,  Mr.  Fox's,  theory  and 
operation  of,  269,  270. 

Liberty,  analysis  of  conception  of, 
90. 

estimate  of  modern  securi- 
ties for  public,  257-266. 

nature  of  Political,  98. 

relations  of,  to  llight,  91. 

Lien,  nature  of  a,  208. 

'  Literis,"  nature  of  Roman  Con- 
tract, 202. 

Local  Legislation,  dangers  incident 
to  secrecy  of,  400. 

Logical  Interpretation,  criticism  of 
expression,  67. 

Lunacy,  Judicial  and  Medical  as- 
pects of,  108. 

Lunatics  accused  of  Crime,  treat- 
ment of,  288,  289. 

Limitations  on  Rights  of 

Ownership  by,  161. 


M. 

Mafne,    Sir    H.    S.,  his  Work   on 

"  Ancient  Law,' '  47. 
on       primitive 

rules  antecedent   to  true   Law, 

325. 
extracts     from 


his  "Ancient  Law,"  in  reference 
to  Ancient  Codes,  365. 

in  reference  to 


early  Codes,  154. 


on       primitive 
Contracts,  193,  201. 

on    the    primi- 


tive relation  of  Contract  to  Sale, 
218. 
his    account  of 


the  Roman  ohlirjatio,  168. 

his    account  of 

primitive  Law  respecting  Crime;--, 
230. 


414 


INDEX. 


Maine,    Sir    H.    S.,    bis    observa- 
tions on  Custom,  49,  50. 

his  work    on 

Village  Communities,  47. 

on  the  history 


of  early  Wills,  183. 
Malice,  analysis  of  notion  denoted 
by  term,  243-245. 

Mr.  Austin's  notes  in  re- 

ference  to,  245. 

Mandatum,  Nature  of  Roman  Con- 

tract  of,  224. 
Marriage,  Natui-e,  Conditions,  and 

Forms  of,  124. 

growth  of  legal  concep- 
tion of,  92. 

as  a  Contract,  216,  217. 


Men  and  Women,  relative  claims 
of,  126,  127. 

historical  evo- 
lution of  relations  of,  127,  128. 

Legal  relations 


of,  129. 
Mill,  Mr.  J.  S.,  extract  from  his 

Essay  on  Bentham,  in  reference 

to  English  Law,  362. 
Misdemeanour,  history  of  distinc- 
tion between,  and   Felony,  252, 

253. 
Misprision  of  Treason,  account  of 

English  offence  of,  255. 
Monarchy,     influence    of,   in    the 

development     of     International 
■    Law,  336. 
Moral   Theories,  account  of    com. 

peting,  30-32. 
Morality,  Confusion  of,  with  Law, 

2,  29,  375. 
• its  true  relation  to  Law, 

32,  33. 
relation  of  International 

Law  to,  323,  324. 
Motive,  legal  use  of  term,  102. 
Murder,    suggestions  for   classify. 

ing  offence  of,  270. 

problems  respecting  Punish. 

ment  of,  283. 


Natuke,  Law  of,  appeal  to  a,  a 
mode  of  Judicial  Legislation,  67, 
72-74. 


Negligence,  nature  of,  as  related 

to  Intention,  115,  116. 
• estimate    of,    in  Con. 

tracts,  207. 
Negotiable  Instruments,  meaning 

and  use  of,  201,  222,  223. 
Neutral    Commerce,    influence    of 

English     doctrines     respecting, 

344. 


O. 

Oaths,  Judicial,  criticism  of  use  of, 

308. 
Obligation    and    obligatio,  relation 

of,  to  a  Contract,  221. 
Obligations,  transfer    and  descent 

of,    222. 
Obligatio,    Sir  H.   S.   Maine's  ac 

count  of  the  Roman,  168. 
Owner,  meaning  of  term,  as  con- 
trasted with  Possessor,  182. 
Ownership,   growth  of   legal  con- 

ception  of,  93. 
■ —  Origin  and  early  His- 

tory  of,  150,  151. 
■ account    of    Laws   of. 


148,  seq. 


160. 


—  elements  of  a  Law  of, 
progress  of  conception 


of,  153,  154. 

analysis  of  a  Right  of. 


170,  171. 
Moral  aspects  of,  155- 

159. 
■ —  Possession  in   relation 


to,  152,  178-181. 

theory     of      German 


Jui-ists  respecting,  157. 
Political  limitations  of. 


188. 


188. 


Modes  of  Protecting, 


P. 

Pardon  not  pleadable  to  an  Im. 

peachment,  40,  41. 
Prerogative  of,    theory  of, 

40,  41,  271. 
Patria  Potestas,  institution  of  the. 


INDEX. 


415 


as  supporting  the  Family  group. 
130. 

Penalty,  nature  of  a,  as  contrasted 
with  Compensation,  37. 

Person,  analysis  and  history  of 
term,  78-81. 

Persons,  artificial  or  fictitious,  ac- 
count of,  83,  84. 

Personal  Property,  history  of  dis- 
tinctions between,  and  Real, 
164. 

Physical  facts,  as  supplying  per. 
mauent  elements  to  Law,  25. 

Pleading,  nature  and  history  of, 
in  England  and   Rome,  296,  299. 

Prerogative  of  Pardon,  theory  of, 
40,  41,  271. 

lodged  with 

Executive,  41,  271. 

Police,  danger  of  fostering  a  sys- 
tem of  Detective,  277. 

perils  incident  to  employ. 

ment  of,  260. 

offences,   multiplication  in 


modern  times  of,  257. 
Political   Authority,   nature    of   a 
supreme,  48,  49. 

Crimes,       grounds      for 

pardoning,  41. 

Pope,    influence    of    the,    in    the 

development     of      International 

Law,  337. 
PoRTAiis,  M.,  upon    French   term 

Jurisprudence,  63,  64. 
Possession,   nature  of,    in  respect 

of  Ownership,  175-181. 
analysis  of  conception 

of,  176. 

hona  fides  in  relation 

to,  177, 178. 

meaning  of  "  Natural," 


176. 


Right  of,  as  contrasted 
with  "  Right  to  possess,"  178. 
Possessio  ad  Interdicta,  meaning  of 

Expression,  177. 
ad    JJs^icapionem,    mean- 
ing of  expression,  178. 
Presumptions  in  respect  of  Igno. 
ranee,  110. 

-  in  favour  of  Infancy, 


106. 


107. 


Insanity, 


Presumptions,  theory  of,  as  affect, 
ing  Burden  of  Proof,  300,  301. 

Prisoner,  evidence  of  the,  excluded 
in  England,  274. 

Prisoners,  history  of  treatment  of, 
in  Eugland,  273. 

Private  International  Law,  in. 
fluence  of,  on  Science  of  Law, 
25-28. 

Prob- 
lems presented  by,  318-321. 

Procedure,  forming  Rules  of,  a 
mode  of  Judicial  Legislation, 
67,  70,  71. 

an  element  in  develop- 
ment of  Law,  51,  52. 

account  of    the  Law  of 


Civil,  290,  seq. 

Proof,  Burden  of,  problems  respect- 
ing, 300,  301. 

Property,    account     of    Laws    of 
Ownership  or,  148,  seq. 

history    of     distinction 

between  Real  and  Personal,  164. 

early,  in  Land,  163. 

Punishment,    nature   of,    as   con. 
trasted  with  Compensation,  37. 

Judicial    discretion 

in  assigning,  38,  39. 

theory  and  policy  of 


Criminal,  278,  288. 


Q 


QUASI-CONTRACTS,  Xature  of,  215. 


B 


Real  Pkopertt,  history  of  dis- 
tinction between,  and  Personal, 
164. 

Reformation  as  one  purpose  of 
Punishment,  280,  289. 

Relevant  facts,  possibUity  of 
enumerating,  303. 

Religious  Bodies,  Law  in  relation 
to,  133-137. 

Representative  Institutions,  esti- 
mate of  value  of,  in  respect  of 
securing  Liberty,  258,  259. 

Res  manciin  and  Res  nee  inancipi, 


41G 


INDEX 


account  of  distincfcion  between, 

in  llomau  Law,  164. 
Restrictive   Interpretation,  mean. 

ing  of,  67. 
Eio-ht,  analysis     and     history    of 

"legal  term,  88-97. 
"  Fractional "  meaning  of  a, 

171. 
Right   of   Ownership,    analysis  of 

a,  170,  171. 
Rights,    possibility   of    the    State 

having,  99. 
Roman     Law,     its     influence     on 

Science  of  Law,  9,  10. 
its  contributions  to 

International  Law,  332. 

Institutions    of,   for 


the     support      of    the     Family 
group,  129,  130. 

analogy    of  its   de- 


velopment with  that  of  English 
Law  and  Equity,  380. 
as  an  ing^redient  of 


French  Law,  384, 


S 


Sale,  as  a  Contract,  218. 

Sanction,  Bentham's  conception  of 
a,  3. 

relation  of  a    legal,  to 

Morality,  32. 

SAViGNir,  his  objections  to  Codifi- 
cation in  Germany,  385. 

Science,   order    of   treatment    of 
any,  1. 

Science  of  Law,  Mr.  Austin  founder 
of,  4. 

materials  of,  18. 

Servitudes,  nature  and  classifica- 
tion of,  171-173,  186. 

—  classification     of,      in 

Roman  Law,  173,  187. 

nature  of  "  Positive  " 


or  "  Affirmative,"  172. 
nature  of  "  Negative," 

172. 
meaningof  "  Personal," 

173. 
meaning  of  ' '  Rustic  " 

and  "  Urban,"  186,  187. 
Sccial  theories,    as  explanatoiy  of 

the  Science  of  Law,  20-22. 


Specific  Performance,  nature  and 

limits  of  the  remedy  of,  210. 
State,  analysis  of  the  meaning  of 

the  term,"  48,  119. 

gi'adual  formation  of  a,  89. 

historical      development     of 

the,  121. 

functions  of  the,  123. 

function  of  the,  in  respect  of 

Crime,  231-233. 
the,  in  reference  to  Govern. 

ment  and  Law,  122. 

the,  Law  in  relation  to,  117. 

the,    Modes   of    influence    of 

the   Governing  Authority  of,  15, 

16. 
the,    regarded    as    a    Moral 

Being,  404. 
the,  possibility  of  its  having 

Rights,  99. 

true  conception  of  the,  120. 

various  uses  of  term,  118. 

States,     analogy     of,    to     human 

beings,  329. 
mutual  relations  of,  as  in- 
fluencing the  Science   of    Law, 

25. 

theoretical  equality  of,  346. 


Statesman,  functions  of  the,  in 
respect  to  legislation,  403. 

Statute,  a,  principles  of  Interpre- 
tation of,  64,  65. 

Law,  how  far  it  exjjresses 

the  sentiments  of  the  com- 
munity, 388. 

Statutes,  mode  of  drawing  English, 
373. 

Statutory  Legislation,  various 
modes  of,  75. 

Stoppage  in  transitu,  nature  of 
the  remedy  of,  208. 

Subordinate  Legislation,  perils  in- 
cident to  use  of,  262,  399. 

Succession,  theoretical  nature 
and  history  of  Intestate,  183, 
184. 

Supreme  Political  Authority, 
functions  of  the,  in  respect  of 
the  creation  of  Law,  325. 

Supreme  Political  Authority, 
possibility  of  the  existence  of, 
in  a  Society  of  States,  327. 

Suretyship,  nature  of  tho  con- 
tract of,  208. 


INDEX. 


417 


Terms,  account  of  elementary,  77, 

seq. 
Text-book    writers,    influence    of, 

on  Judicial  Lefnslation,  67,  69, 

70. 
Thing,     analysis   and    liistory    of 

the  legal  term,  85-88. 
a  Person  sometimes  treated 

as  a,  87. 
reference 


to    legal    term, 

in  the  Code  Napoleon,  86,  87. 

meaning  of  Incorporeal,  in 


English  Law,  86. 
Things,   divisions    of,     co-sabjects 

of  Ownership,  165. 
Titulus  Justus,  meaning  of  expres- 
sion, 176. 
Treason,  ground  of  the  criminality 

involved  in,  235. 
historical  account  of,  in 

England,  252,  253. 
English     statute    of    23 

Edward    III.    respecting,     251, 

252. 
Misprision    of,     account 

of  English  ofEence  of,  255. 
Treaties,    influence   of,   on   Inter. 

national  Law,  844. 
Trial,  circumstances  of  an  early, 

an  element  in  the  development 

of  Law,  52. 
The   Xn.    Tables,    Commentaries 

upon,  how  concocted,  63. 
Trustees,   various    modes   of    ap- 

pointing,  143. 
Trusteeship,  necessity  for  institu- 

tion  of,  141,  142. 
Ti-usts   and    Trustees,    nature    of 

laws  relative  to,  141,  seq. 


Utilitarian    Test,   Mr.    Austin's 
views  of  the  use  of  the,  4. 


Yattel,  his  distinction  between 
the  "necessary"  and  "  volun- 
tary  "  Law  of  Nations,  340. 


Village   Communities,    SiK   H.   S. 

Maine's  work  on,  47. 
Community  in  reference  to 

the  progressive  organization   of 

the  State,  131. 
Group,  importance  of  the, 

132. 
Vindictive    Damages,    nature  of, 

211. 
-theory  of  Punishments, 

objections  to  the,  282. 


W 

Ward,  Mr.,  his  testimony  to  the 
influence  of  Chivalry,  335. 

Warrant,  meaning  and  theory  of 
a,  264. 

Wars,  influence  of  International 
Law  on,  345. 

modes  of  preventing,  351, 

352. 

Wife,  Eights  and  Duties  in  respect 
of  Husband  and  Children,  prin- 
ciples for  ascertaining,  126. 

Will,  legal  use  of  term,  101,  102. 

theoretical  natui'o  of  a,  183. 

Wills,  Sir  H.  S.  Maine  on  the 
History  of  early,  183. 

Witnesses,  grounds  of  excluding, 
302. 

practice     of      receiving 

Depositions  of,  taken  out  of 
Court,  386. 

problems      relating      to 

Evidence  of  Scientific,  309-311. 

Women,  historical  evolutions  of 
relations  of  Men  and,  127,  128. 

legal  relations  of    Men 

and,  129. 

relative  claims  of  Men 

and,  126,  127. 


Youth,  aa  affecting  the  capacity 
for  making  a  Contract,  198, 
199. 


LIST  OF  A  UTHORS  AND  SUBJECTS  OF  THEIR  BOOKS, 


TO    BE    PUBLISHED    IN    THE 


International  Scientific  Series. 


Rev.  M.  J.  Berkeley,  M.  A.,  F.  L.  S., 
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Prof.  Oscar  Schmidt  (University  of  Stras- 
burg),  The  Theory  of  Descent  and 
Dariuinis7n. 

Prof.  VoGEL  (Polytechnic  Academy  of  Ber- 
lin), The  Chemical  Effects  of  Light. 

Prof.  W.  Kingdom  Clifford,  M.  A., 
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Prof  Austin  Flint,  Jr.,  M.  D.,  The  Ner- 
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0>!  .Sound. 
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"  If  the  '  International  Scientific  Series  '  proceeds  as  it  has  begun,  it  will  more  than 
fulfil  the  promise  given  to  the  reading  public  in  its  prospectus.  The  first  volume,  by 
Professor  Tyndall,  was  a  model  of  lucid  and  attractive  scientific  exposition  ;  and  now 
we  have  a  second,  by  Mr.  Walter  Bagehot,  which  is  not  only  very  lucid  and  charming, 
but  also  original  and  suggestive  in  the  highest  degree.  Nowhere  since  the  publication 
of  Sir  Henry  Maine's  'Ancient  Law,'  have  we  seen  so  many  fruitful  thoughts  sug- 
gested in  the  course  of  a  couple  of  hundred  pages.  ...  To  do  justice  to  Mr.  Bage- 
hot's fertile  book,  would  require  a  long  article.  With  the  best  of  intentions,  we  are 
conscious  of  having  given  but  a  sorry  account  of  it  in  these  brief  paragraphs.  But  we 
hope  we  have  said  enough  to  commend  it  to  the  attention  of  the  thoughtful  leader." — 
Prof  John  Fiske,  in  the  A  tlaniic  Monthly. 

"  Mr.  Bagehot's  style  is  clear  and  vigorous.  We  refrain  from  giving  a  fuller  ac- 
count of  these  suggestive  essays,  only  because  we  are  sure  that  our  readers  will  find  it 
worth  their  while  to  peruse  the  book  for  themselves ;  and  we  sincerely  hope  that  the 
forthcoming  parts  of  the  '  International  Scientific  Series '  will  be  as  interesting."— 
A  thentenm. 

"  Mr.  Bagehot  discusses  an  immense  variety  of  topics  connected  with  the  progress 
of  societies  and  nations,  and  the  development  of  their  distinctive  peculiarities;  and  his 
book  shows  an  abundance  of  ingenious  and  original  thought"— Aured  Russkh, 
Wallace,  in  Nature. 

D.  APPLETON  &  CO.,  Publishers,  549  &  551  Broadvi^ay,  N.  Y. 


opinions  of  the  Press  on  the  ^''International  Scientijic  Series." 


III. 


Foods. 


By    Dr.   EDWARD    SMITH. 
I  vol.,  i2mo.     Cloth,     Illustrated Price,  $1.75. 

In  making  up  The  International  Scientific  Series,  Dr.  Edward  Smith  was  se- 
lected as  the  ablest  man  in  England  to  treat  the  important  subject  of  Foods.  His  services 
were  secured  for  the  undertaking,  and  the  little  treatise  he  has  produced  shows  that  the 
choice  of  a  writer  on  this  subject  was  most  fortunate,  as  the  book  is  unquestionably  the 
clearest  and  best-digested  compend  of  the  Science  of  Foods  that  has  appeared  in  our 
language. 

"  The  book  contains  a  series  of  diagrams,  displaying  the  effects  of  sleep  and  meals 
on  pulsation  and  respiration,  and  of  various  kinds  of  food  on  respiration,  which,  as  the 
results  of  Dr.  Smith's  own  experiments,  possess  a  very  high  value.  We  have  not  far 
to  go  in  this  work  for  occasions  of  favorable  criticism ;  they  occur  throughout,  but  are 
perhaps  most  apparent  in  those  parts  of  the  subject  with  which  Dr.  Smith's  name  is  es- 
pecially linked." — London  Examiner. 

"  The  union  of  scientific  tmd  popular  treatment  in  the  composition  of  this  work  will 
afford  an  attraction  to  many  readers  who  would  have  been  indifferent  to  purely  theoreti- 
cal details.  .  .  .  Still  his  work  abounds  in  information,  much  of  which  is  of  gieat  value, 
and  a  part  of  which  could  not  easily  be  obtained  from  other  sources.  Its  interest  is  de- 
cidedly  enhanced  for  students  who  demand  both  clearness  and  exactness  of  statement, 
by  the  profusion  of  well-executed  woodcuts,  diagrams,  and  tables,  which  accompany  th^ 
volume.  .  .  .  The  suggestions  of  the  author  on  the  use  of  tea  and  coffee,  and  of  the  var 
rious  forms  of  alcohol,  although  perhaps  not  strictly  of  a  novel  character,  are  highly  in- 
structive, and  form  an  iiKeresting  portion  of  the  volume." — N.  Y.  Tribune. 


IV. 

Body  and  Mind. 

THE    THEORIES    OF    THEIR    RELATION. 

By   ALEXANDER    BAIN,    LL.  D. 

I  vol.,   i2mo.      Cloth Price,   $1.50. 

Professor  Baim  is  the  author  of  two  well-known  standard  works  upon  the  Science 
of  Mind — "  The  Senses  and  the  Intellect,"  and  "  The  Emotions  and  the  Will."  He  is 
one  of  the  highest  living  authorities  in  the  school  which  holds  that  there  can  be  no  sound 
or  valid  psychology  unless  the  mind  and  the  body  are  studied,  as  they  exist,  together. 

"  It  contains  a  forcible  statement  of  the  connection  between  mind  and  body,  study- 
ing their  subtile  interworkings  by  the  light  of  the  most  recent  physiological  investiga- 
tions. The  summary  in  Chapter  V.,  of  the  investigations  of  Dr.  Lionel  Beale  of  the 
embodiment  of  the  intellectual  functions  in  the  cerebral  system,  will  be  found  the 
freshest  and  most  interesting  part  of  his  book.  Prof.  Bain's  own  theory  of  the  connec- 
tion between  the  mental  and  the  bodily  part  in  man  is  stated  by  himself  to  be  as  follows : 
There  is  '  one  substance,  with  two  sets  of  properties,  two  sides,  the  physical  and  the 
mental — a  double-faced  unity.'  While,  in  the  strongest  manner,  asserting  the  union 
of  mind  with  brain,  he  yet  denies  '  the  association  of  union  in  place,'  but  asserts  the 
union  of  close  succession  in  time,'  holding  that  'the  same  being  is,  by  alternate  fits,  un- 
der extended  and  under  unextended  consciousness."  ' — Christian  Register. 

D.  APPLETON  &  CO.,  Publishers,  549  &  551  Broadway,  N.  Y. 


opinions  of  the  Press  on  the  "  International  Scieiitific  Scries. 


The  Study  of  Sociology. 

By   HERBERT   SPENCER. 
I  vol.,  i2mo.     Cloth Price,  $1.50. 

"The  philosopher  whose  distinguished  name  gives  weight  and  influence  to  this  vol- 
ume, has  given  in  its  pages  some  of  the  finest  specimens  of  reasoning  in  all  its  forms 
and  departments.  There  is  a  fascination  in  his  array  of  facts,  incidents,  and  opinions, 
which  draws  on  the  reader  to  ascertain  his  conclusions.  The  coolness  and  calmness  of 
his  treatment  of  acknowledged  difficulties  and  grave  objections  to  his  theories  win  for 
him  a  close  attention  and  sustained  effort,  on  the  part  of  the  reader,  to  comprehend,  fol- 
low, grasp,  and  appropriate  his  principles.  This  book,  independently  of  its  bearing 
upon  sociology,  is  valuable  as  lucidly  showing  what  those  essential  characteristics  are 
which  entitle  any  arrangement  and  connection  of  facts  and  deductions  to  be  called  a 
science." — Episcopalian. 

"  This  work  compels  admiration  by  the  evidence  which  It  gives  of  immense  re- 
search, study,  and  observation,  and  is,  withal,  written  in  a  popular  and  very  pleasing 
style.     It  is  a  fascinating  work,  as  well  as  one  of  deep  practical  thought." — Bost.  Post. 

"  Herbert  Spencer  is  unquestionably  the  foremost  living  thinker  in  the  psychological 
and  sociological  fields,  and  this  volume  is  an  important  contribution  to  the  science  of 
which  It  treats.  ...  It  will  prove  more  popular  than  any  of  its  author's  other  creations, 
for  It  Is  more  plainly  addressed  to  the  people  and  has  a  more  practical  and  less  specu- 
lative cast.  It  will  require  thought,  but  It  is  well  worth  thinking  about." — Albany 
Evening  Jourjial. 

VI. 

The   New  Chemistry. 

By  JOSIAH  P.  COOKE,  Jr., 

Erving  Professor  of  Chemistry  and  Mineralogy  in  Harvard  University. 

I  vol.,   l2mo.     Cloth Price,  $2.00. 

"  The  book  of  Prof.  Cooke  is  a  model  of  the  modern  popular  science  work.  It  has 
just  the  due  proportion  of  fact,  philosophy,  and  true  romance,  to  make  it  a  fascinating 
companion,  either  for  the  voyage  or  the  study." — Daily  Graphic. 

"  This  admirable  monograph,  by  the  distinguished  Erving  Professor  of  Chemistry 
in  Harvard  University,  is  the  first  American  contribution  to  'The  International  Scien- 
tific Series,'  and  a  more  attractive  piece  of  work  in  the  way  of  popular  exposition  upon 
a  difficult  subject  has  not  appeared  in  a  long  time.  It  not  only  well  sustains  the  char- 
acter of  the  volumes  with  which  it  Is  associated,  but  its  reproduction  in  European  coun- 
tries will  be  an  honor  to  American  science." — Neiv  York  Tribune. 

"All  the  chemists  in  the  country  will  enjoy  its  perusal,  and  many  will  seize  upon  it 
as  a  thing  longed  for.  For,  to  those  advanced  students  who  have  kept  well  abreast  of 
the  chemical  tide,  it  offers  a  calm  philosophy.  To  those  others,  youngest  of  the  class, 
who  have  emerged  from  the  schools  since  new  methods  have  prevailed,  it  presents  a 
generalization,  drawing  to  its  use  all  the  data,  the  relations  of  which  the  newly-fledged 
fact-seeker  may  but  dimly  perceive  without  its  aid.  ...  To  the  old  chemists,  Prof 
Cooke's  treatise  is  like  a  message  from  beyond  the  mountain.  They  have  heard  of 
clianges  in  the  science;  the  clash  of  the  battle  of  old  and  new  theories  has  stIiTcd  them 
from  afar.  The  tidings,  too,  had  come  that  the  old  had  given  way  ;  and  little  more  than 
this  they  knew.  .  .  .  Prof  Cooke's  '  New  Chemistry '  must  do  wide  service  In  bringing 
to  close  sight  the  little  known  and  the  longed  for.  ...  As  a  philosophy  it  is  elemen- 
tary, but,  as  a  book  of  science,  ordinary  readers  will  find  it  sufficiently  advanced."— 
Utica  Morning  Herald. 

D.  APPLETON  &  CO.,  Publishers,  549  &  551  Broadway,  N.  Y. 


Opi7iioHS  of  the  Press  on  the  '■^International  Scientific  Series." 


VII. 

The  Conservation  of  Energy. 

By  BALFOUR  STEWART,  LL.  D.,  F.  R.  S. 

With  an  Appendix  treatitig  of  the  Vital  and  Menial  Applications  of  the  Doctrine. 
I  vol.,  i2mo.     Cloth.     Price,  $1.50. 

"  The  author  has  succeeded  in  presenting  the  facts  in  a  clear  and  satisfactory  manner, 
using  simple  language  and  copious  illustration  in  the  presentation  of  facts  and  prin- 
ciples, confining  himself,  however,  to  the  physical  aspect  of  the  subject.  In  the  Ap- 
pendix the  operation  of  the  principles  in  the  spheres  of  life  and  mind  is  supplied  by 
the  essays  of  Professors  Le  Conte  and  Bain." — Ohio  Farmer. 

"  Prof.  Stewart  is  one  of  the  best  known  teachers  in  Owens  College  in  Manchester. 

"The  volume  of  The  International  Scientific  Series  now  before  us  is  an  ex- 
cellent illustration  of  the  true  method  of  teaching,  and  will  well  compare  with  Pro£ 
Tyndall's  charming  little  book  in  the  same  series  on  '  Forms  of  Water,"  with  illustra- 
tions enough  to  make  clear,  but  not  to  conceal  his  thoughts,  in  a  style  simple  and 
brief." — Christian  Register,  Boston. 

"  The  writer  has  wonderful  ability  to  compress  much  information  into  a  few  words. 
It  is  a  rich  treat  to  read  such  a  book  as  this,  when  there  is  so  much  beauty  and  force 
combined  with  such  simplicity. — Eastern  Press. 


VIII. 

Animal  Locomotion; 

Or,  WALKING,   SWIMMING,  AND  FLYING. 

IVith  a  Dissertation  on  Aeronautics. 

By  J.  BELL  PETTIGREW,  M.  D.,  F.  R.  S.,  F.  R.  S.  E., 
F.  R.C.  P.E. 

I  vol.,  l2mo Price,  $1.75. 

"This  work  is  more  than  a  contribution  to  the  stock  of  entertaining  knowledge, 
though,  if  it  only  pleased,  that  would  be  sufficient  excuse  for  its  publication.  But  Dr. 
Pettigrew  has  given  his  time  to  these  investigations  with  the  ultimate  purpose  of  solv- 
ing the  difficult  problem  of  Aeronautics.  To  this  he  devotes  the  last  fiftj'  pages  of  his 
book.  Dr.  Pettigrew  is  confident  that  man  will  yet  conquer  the  domain  of  the  air." — 
N.   Y.  Journal  of  Commerce. 

"Most  persons  claim  to  know  how  to  walk,  but  few  could  explain  the  mechanical 
principles  involved  in  this  most  ordinary  transaction,  and  will  be  surprised  that  the 
movements  of  bipeds  and  quadrupeds,  the  darting  and  rushing  motion  of  fish,  and  the 
erratic  flight  of  the  denizens  of  the  air,  are  not  only  anolojous,  but  can  be  reduced  to 
similar  formula.  The  work  is  profusely  illustrated,  and,  without  reference  to  the  theory 
it  is  designed  to  expound,  will  be  regarded  as  a  valuable  addition  to  natural  history." 
— Omaha  Republic. 

D.  APPLETON  &  CO.,  Publishers,  549  &  551  Broadway,  N.  Y. 


opinions  of  the  Press  on  the  "  International  Scientific  Series." 


IX. 

Responsibility  in  Mental  Disease. 

By  HENRY  MAUDSLEY,   M.  D., 

Fellow  of  the  Royal  College  of  Physicians ;  Professor  of  Medical  Jurisprudence 
in  University  College,  London. 

I  vol.,  l2mo.     Cloth Price,  $1.50. 

"  Having  lectured  in  a  medical  college  on  Mental  Disease,  this  book  has  been  a 
feast  to  us.  It  handles  a  great  subject  in  a  masterly  manner,  and,  in  our  judgment, 
the  positions  taken  by  the  author  are  correct  and  well  sustained.  In  his  second  chap- 
ter he  has  well  marked  out  the  border-line  between  sanity  and  insanity,  speaks  of  the 
prophets  of  the  Old  Testament,  the  epileptic  nature  of  Mahomet's  visions,  crime  and 
insanity,  epileptic  insanity,  etc.  Here  we  can  bear  testimony  to  the  truth  of  his  re- 
marks from  professional  experience,  having  had  probably  more  epileptic  patients  than 
any  other  physician  of  our  day  to  treat." — Pastor  and  People. 

"  The  author  is  at  home  in  his  subject,  and  presents  his  views  in  an  almost  singu- 
larly clear  and  satisfactory  manner.  .  .  .  The  volume  is  a  valuable  contribution  to  one 
of  the  most  difficult,  and  at  the  same  time  one  of  the  most  important  subjects  of  inves- 
tigation at  the  present  day." — N.  V.  Observer. 

"  It  is  a  work  profound  and  searching,  and  abounds  in  wisdom."— Pittsburg  Com- 
inercial. 

"  Handles  the  important  topic  with  masterly  power,  and  its  suggestions  are  prac- 
tical and  of  great  value." — Providence  Press. 

"  Dr.  Maudsley's  book  appears  to  us  timely  and  valuable  as  bringing  within  the 
reach  of  every  person  the  facts  which,  to  the  multitude,  are  often  inaccessible."— 
Chicago  Tribune. 

"Dr.  Maudsley's  treatise  cannot  but  have  an  influence  on  the  jurisprudence  of  the 
future  with  respect  to  the  insane." — Buffalo  Cou7-ier. 

"A  compact  presentation  of  those  facts  and  principles  which  require  to  be  taken 
into  account  in  estimating  human  responsibility."— /'^j/z/Zar  Science  Monthly. 

"  The  International  Scientific  Series,  whose  merits  have  commanded  such 
a  prompt  and  extended  recognition  by  the  reading  and  thinking  public,  has  its  scope 
considerably  enlarged  by  the  publication  of  this,  its  latest  volume.  The  treatise  of 
Prof  Maudsley  relates  to  a  subject  of  peculiar  interest,  and  which  to  every  one  has 
more  or  less  importance.  How  far  insanity,  whether  partial  or  entire,  affects  the  re- 
sponsibility of  the  sufferer,  is  ably  argued,  the  importance  of  the  question  warranting 
the  length  of  the  treatise,  which  the  admirable  style  of  the  author  renders  of  constant 
interest  throughout." — Boston  Post. 

"  The  author  has  evidently  devoted  much  study  to  his  theme,  which  he  discusses 
with  commendable  common-sense.  His  style  is  clear  and  his  essay  is  decidedly  inter- 
esting."—  The  Cultivator  and  Country  Gentleman. 

"  The  style  is  clear  and  vigorous.  In  the  chapter  on  Law  and  Insanity  the  author 
commends  himself,  by  his  acute  criticisms  and  judicial  deliverances,  to  the  attention  of 
lawyers." — TAe  Christian  Era. 

D.  APPLETON  &  CO.,  Publishers,  549  &  551  Broadway,  N.  Y. 


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